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PUB DATENOTEAVAILABLE FROM

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Finkelstein, M. Marvin; And OthersProsecution in the Juvenile Courts: Guidelines forthe Future.National Inst. of Law Enforcement and CriminalJustice, Washington, D.C.Dec 73129p.Superintendent of Documents, U.S. Government PrintingOffice, Washington, D.C. 20402 (Stock No. 2700-00246,$1.60)

EDRS PRICE MF-$0.75 HC-$6.60 PLUS POSTAGEDESCRIPTORS *Court Litigation; *Delinquency; Guidelines;

*Juvenile Courts; Lawyers; Legal Problems; *LegalResponsibility; *Program Improvement

ABSTRACTThis monograph analyses the functions of the

prosecutor in the juvenile system. The authors examined in detail theexisting prosecution system in the Boston Juvenile Court and surveyedprocedures in a number of other cities. The findings show a widedisparity in practice and in the quality of justice dispensed. Forexample, in the Boston sample the arresting officer alone isresponsible for presenting evidence. Equipped with only such legaltraining as his law enforcement career may have provided him, hefrequently must confront either a public defender or privateattorney. In such cases, the report suggests, the odds would appearto be weighted against the law enforcement interests of thecommunity. To develop a judicial framework which serves both therights of the accused juvenile and the safety of the community, thestudy recommends that juvenile courts adopt a modified version of theprosecutor-defender structure which now serves the adult criminaljustice system. This report includes guidelines for such a juvenileprosecution system. (Author/PC)

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PROSECUTION

IN

THE JUVENILE COURTS:

GUIDELINES FOR THE FUTURE

By

M. MARVIN FINKELSTEIN, Project Director

ELLYN WEISS

STUART COHEN

PROFESSOR STANLEY Z. FISHER, Consultant

US DEPARTMENT OP RE ALTR.EDUCATION& WELFARENATIONAL INSTITUTE OF

THIS DOCUMENTEDUCATION

RM BEEN REPRODuCED EXACTLY AS REMYED a ROMTHE PERSON OR ORGANIZAT ON ORIGINMING IT POINTS OF YIEN, OR OPINION,STATED 00 NOT NECESSARR Y R. PRIcf NT OgrterAL NATIONAt *Ns t tut, 0.

DuCAttON POSITION OR POLICY

This project was supported by Grant No. 71.109-6, awarded by theNational Institute of Law Enforcement and Criminal Justice, LawEnforcement Assistance Administration, U.S. Department of Justiceunder the Omnibus Crime Control and Safe Streets Act of 1)68, asamended. Points of view or opinions stated in tnis document arethose of the authors and do not necessarily represent the officialposition or policies of the U.S. Department of Justice.

(Y)

December 1913

U.S.

0

DEPARTMENT OF JUSTICE

Law Enforcement Assistance Administration

National Institute of Law Enforcement and Criminal Justice

.1

LAW ENFORCEMENT ASSISTANCEADMINISTRATION

Donald E. Santarelli, AdministratorRichard W. Velde, Deputy AdmenistratorCharles R. Work, Deputy Administrator

NATIONAL INSTITUTE OF LAW ENFORCEMENTAND CRIMINAL JUSTICE

Gerald M. Caplan, Director

e, Sn a b tr.k. ...... den, vf 00(rtieritS S 00vet 'mien} Pr.ntoiq OW( pDr' 200)2 Pr. P $I 60

Stor f11,ber 2700 00246

FOREWORD

The juvenile justice system in the United States is in the process of trans-formation. Recent court decisions have impacted strongly on many traditionalmethods for processing juvenile cases at the various levels of the judicial system.

The winds of change have been particularly strong in the area of proceduralsafeguards and the juvenile's right to legal counsel. Largely overlooked in therethinking of juvenile justice, however, is the role of the juvenile prosecutor.And vet thi: prosecutor hears a double responsibility: protecting society againstcriminal behavior while at the same time preserving the juvenile's rights.

This study analyzes the functions of the prosecutor in the juvenile system.The researchers examined in detail the existing prosecution system in the BostonJuvenile Court and surveyed procedures in a number of other cities. Their find-ings show a wide disparity in practice and, the authors believe, in the qualityof justice dispensed.

In Boston, for example, the arresting police officer is solely responsible forpresenting evidence. Equipped with only such legal training as his law enforce-ment career may have given him, he frequently must confront either a publicdefender or a private attorney. In such cases, the report notes, the odds wouldappear to be weighted against the law enforcement interests of the community.

To develop a judicial framework which serves both the rights of the accusedjuvenile and the safety of the community, the study recommends that juvenilecourts adopt a modified version of the prosecutor-defender structure which haslong served the adult criminal justice system. Included in this report are guide-lines for such a juvenile prosecution system.

LEAA publishes this report in the belief that the issues it raises can contributeto current efforts to develop a fair, effective system of juvenile justice.

CHARLES R. WORK

Deputy Adminstratorfor Administration

Law Enforcement

Assistance Administration

iii

ACKNOWLEDGEMENTS

We are grateful to the many individuals whose assistance we received in thepreparation of this report, and are pleased to acknowledge their contributionsand to express our appreciation.

We are very thankful to Presiding Justice Francis Poitrast and Chief Clerkrohn Louden of the Boston Juvenile Court without whose cooperation and

assistance much of the research could not have been conducted. We also wishto thank Chief Probation Officer Louis Maglio, Lieu 'enant John R.. Chisholmof the Juvenile Aid Section of the Boston Police Mr.: lament, and the variousjuvenile officers and staff members of the Massach, tr. Defenders Committeewho gave so freely of their time.

Louis W. McHardy, Executive Director of the Na:. Council of JuvenileCourt Judges, was gracious enough to provide a cover letter for the question-naires, which we forwarded to juvenile court ju..; throughout the UnitedStates.

We are especially grateful to Professor Sheldon Krantz, Director of theCenter for Criminal Justice, for his very valuable contributions of originalmaterial and his extensive assistance in all sections of the report.

We also wish to acknowledge the important research efforts of Center staffmembers Jonathan Brant, Saul Schapiro, Susan Silbey and the assistance pro-vided by Jeffrey D. Woolf in many phases of our work.

Finally, a word of thanks is due to Boston Unversity law students LawrenceGustafson, Michael W. Marean, Julie G. Smith, and Paul Onkka for theirresearch assistance and to Susan Leavy who typed the final manuscript.

iv

FOREWORD

CONTENTS

ACKNOWLEDGEMENTS iv

SUMMARY viii

CHAPTER I. INTRODUCTION

CHAPTER II. THE DEVELOPMENT OF THE JUVENILE COURTSYSTEM IN THE UNITED STATES

A. Early DevelopmentB. Challenge and Reform 6

CHAPTER III. THE PROSECUTOR'S ROLE IN THE JUVENILECOURT: FORMER STATUS AND CURRENT TRENDS . . . 9

A. The Prosecutor's Role Historically 9B. The Potential Impact of Gault on the Prosecutor's Role . 10

1. Recognition of the need for legally trained state rem:-sentatives 10

2. Impact of no prosecutor upon probation officer andjudicial roles 1I

3. Trends in proposed and recent legislation 1 2

4. Current utilization of prosecutors in juvenile courts 1.1

C. The Center's 1972 National Survey 1.1

1. Defense counsel involvement in juvenile proceedings 15

2. Scope and nature of attorney-prosecution 163. The division of court functions and the prosecutor's role 18

a. The initial detention decision 18b. Preparttion and review of the petition 19c. Pretrial motions, probable cause hearings, and consent

decrees 19d. Adjudic Itic.)n and disposition 19

1. The views of juvenile court judges towards an expandedrole for the prosecutor 20

5. Narrative comments of judges responding to survey . 236. Summary of National Survey 25

a. Defense counsel involvement in juvenile proceedings 25

h. AttorneyAttorney representation of the State 25

c. Judges' views of the expanded use of attorney-prosecu-tors in juvenile court 25

CHAPTER IV. THE IDENTIFICATION OF PRELIMINARY OB-JECTIVES FOR PROSECUTION IN THE JUVENILE COURTS . 27

CHAPTER V. PROSECUTION IN THE BOSTON JUVENILECOURT 30

A. History of the Boston Juvenile Court . 30

B. Boston Juvenile Court Procedures 33

I. Jurisdiction 332. Initiation of juvenile delinquency cases 3-I

3. Notice and detention4. Bail 34

5. Arraignment and issuance of process 35

6. Adjudicatory hearingconfidentiality 367 Parties present 368. Conduct of the hearing 369. Adjudication and disposition 37

10. Waiver to criminal court 37

11. Appeals 38C. Caseload in the Boston Juvenile Court: 1962-1971 . 39D. Introduction and Methodology 39

E. Public Defender Services in the Boston Juvenile Court (Over-view ) 40

F. Police Prosecutor Services in the Boston Juvenile Court( Overview ) i2

G. Pre-adjudication 43H. Adjudication 51

I. Post-adjudication 62

CHAPTER VI. PROSECUTION IN OTHER REPRESENTATIVECOURTS 69

A. The Fulton County Juvenile Court, Atlanta, Georgia . 69B. The Second District Juvenile Court, Salt Lake City, Utah 71

C. The King County Juvenile Court, Seattle, Washington 7ID. The Rhode Island Family Court, Providence 74

E. Metropolis 79F. Connecticut Juvenile Court, Third District, Hartford . 85

CHAPTER VII. PROSECUTION GUIDELINES FOR BOSTONJUVENILE COURT 89

A. General Principles for Juvenile Prosecution 89

B. Specific Guidelines 90

vi

Por1. Polite entorcement and investigation2. Pretrial detention 91

3. Court intake 91

4. Diversion of cases before adjudication 9.4

5. Preparation of cases for trial 916. Pretrial motions and diskovery 95

7. Presentation of States case at trial 958. Disposition 969. Appeals and collateral attack 96

10. _Proceedings at the cc :ion stage 961I. Personnel and trait, 9712. Relationship with other agencies 99

APPENDIX A 101

APPENDIX B 102

APPENDIX C 106

SUMMARY

I.

With the Supreme Court dec isions in Ga:11 andother recent cases, there has been a perceptibletrend ow ay from the very informal, paternalisticmodels of the past in favor of greater formality inthe adjudicativ process. Although the future shapeof the juvenile justice system remains in flux,retently-imposed requirements have already createdserious stresses in the administration of juvenilejustit, and have raised many new questions con-cerning the future of juvenile iustite in the UnitedStates.

Within this developing controversy, the matterof juvenile prosecution assumes new importance.Virtually ignored in the literature, the juvenileprose utor has, in the past, occupied a status of littleconsequence. However, with the growth of defensecounsel partit ipation in juvenile court prcxeedingsand the in rearing number of legal issues which arenow being raised at all stages of the process, theeffects of inadequate prosecutorial services take onsignificant new dimensions. Cert.tinly, whateverthe future course of juvenile lacy, the role of!nowt ution still, of necessity, have to be rethought.

Accordingly, our effort was directed toward acomprehensive examination of the need for attor-ncy.prosecutors in juvenile delinquency proceed-ings and a consideration of the appropriate scopeof their responsibility. Although much of ourempirical research was fOcused on the Boston juve-nile Court, where prosecution is conducted bypolice ofiit ors. tonsiderablc attention was given toplating our findings in a national context. In addi-tion ft) a review of statutory and other legal mate-rials from man; states, on-site visits were made to

viii

three jurisdictions and a survey of juvenile courtjudges in the one hundred largest cities in thecountry was conducted.

Throughout the course of our work, We wereguided by certain preliminary assumptions which,in turn, were tested throughout the project andwhich now follow. As an advocate of the state'sinterests, the juvenile court prosecutor must balanceconsiderations of community protection with anequal duty to promote the best interests of juve-niles. His responsibilities to prepare and presentthe state's case must be tempered by his role aspdrtns pdtriae and by a commitment to the childwelfare concerns of the juvenile court. Accordingly,the prosecutor must assume a major role in pro-meting the legal rights of juveniles by proceedingonly on legally sufficient petitions or complaints,by insisting that police field practices arc consistentwith legal requirements, and by encouraging fairand lawful p7,)cedures in the court. Similarly, heshould participate in efforts to adjust and divert allappropriate cases prior to adjudication and to striveto obtain the least restrictive alternatives whichmay be warranted for those juveniles who arereferred to the court. While the establishment ofa balanced adversary system in juvenile courts isan essential element in their future development,the cause of juvenil. justice will not be served ifthe traditional ideals of the juvenile court move-ment arc lost as a consequence. It is, therefore,imperative that the design and implementation ofnew programs of juvenile prosecution be aimedtoward sustaining and enhancing the court's orig-inal high purpose.

The findings of this research form the basis forthe recommended guidelines for juvenile prosecu-

tion which cone luck the report. It is hoped thatthese guidelines will have useful application tojuvenile courts throughout the country as theyseek to formulate new directions for juvenileprosecution.

II.

In spirit, the juvenile court was designed tofunction as a "non-legal" social agency, providingneeded care to endangered children, and resortingto coercion only as necessary to serve the bestinterests of the child. Hearings were to be con-ducted informally and in private, legal "techni-calities" were to be put aside, and records were tobe kept confidential. Because the judge and pro-bation staff were to act as "parent 'nitride," in thechild's best interest, claims that the child neededrepresentation by counsel or other protection ofhis "rights" were viewed as misconceived. Thecourt's process was to be paternalistic rather thanadversary. The function of the proceedings was todiagnose the child's condition and the prescribefor his needsnot to judge his acts and decide hisrights.

However, the essential thrust of the recommen-dations of the President's Task Force on JuvenileDelinquency and the Supreme Court's decision inGuilt was that greater procedural formality injuvenile courts was needed in order to safeguardthe constitutional rights of juveniles. Develop-ments which have taken place since 1967 have,for the most part, Continued this trend.

However, for juvenile courts to survive as dis-tinct institutions dedicated to non-punitive treat-ment and rehabilitation of offenders, they willhave to continue to absorb the impact of judicialand legislative actions which "legalize" and "for-malize" their processes, without surrendering theirdistinctive goals. Valid criticisms of existing proce-dures, whether on grounds of unfairness or ineffi-dent y, should be anticipated, and solutions shouldbe tailored Ix hich will interfere as little as possiblewith the substantive goals of the system.

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The traditional juvenile court process did notinclude a "prosecutor" in the sense of a legallytrained person with responsibility to represent thestate in court proceedings. For several reasons, theinclusion of such a role would not only have beenseen as unnecessary, but as positively harmful tothe proper functioning of the court. Juvenile courtproceedings were designed to diagnose and treatthe problems of children appearing before thecourt. The proceeding was conceived to be oneinstituted "on behalf" of the child, rather thanagainst him. In this proceeding the state was repre-sented by the judge, who had the dual role ofdeciding whether the court had jurisdiction overthe child and, if so, of prescribing that dispositionwhich would best further the state's interest, asparns parriae, in promoting the child's welfare.Proceedings "on behalf of the child" could oftenbe instituted by "any reputable person," but itgenerally fell to the probation officer to investigateand actually prosecute the petition in court.

The participation of a state prosecutor wouldhave implied the existence of some particular stateinterest which required advocacy, an interest dis-tinct by definition from those of both the childand the judge (court). But such a conception wasconsidered contrary to the traditionally prevailingnotion that only one interestthe child'swas atstake in juvenile court proceedings.

Aside from the impact of defense counsel injuvenile delinquency cases, according to the post-Ganit, "due process" view of the juvenile court, itis no longer possible.to conceive of juvenile courtproceedings as involving a single interestthechild's. Until, at least, the adjudicatory stage hasended, the Constitution requires procedures whichrecognize that distinct and possibly conflictinginterests are involved. The State has ..cn interest intaking jurisdiction over appropriate juvenile sub-jects on two grounds: to protect society fromthreatening conduct and, as parents patriae. topromote the juvenile's welfare. The child, on theother hand, has an interest in avoiding inappro-

priate or lifinvt CSN.Er j :yen& court proceedings,stigmatic adjudic mums, and other consequentdeprivations. This recognition of potential adver-sariness in juvenile court proceedings was expressedin the Supreme Court's application of various proce-dural protections drawn from the Constitutionalrequirements in criminal proceedings.

Aggressive defense of the child's interest inavoiding adjudication is now taking such "tech-nical- forms as suppression of illegally seized evi-dence or defective witness identifications, demandsfor probaPe cause hearings, and objections to thesufficiency of proof. Without any legally trainedprosecutor available in the juvenile court to pre-sent the state's response to such objections, thestate's interest may not be represented adequately,unless the judge compensates by acting as prose-cutor. When the latter cx c urs, as it has in manyinstances, other problems arise.

A review of juvenile court legislation currentlyin force across the nation discloses considerablevariation among the jurisdictions on the questionof prosecution. About half of the state's laws stillreflect the traditional, pre-Gatilt conception ofthe juvenile court by their silence on the subjectof prosecution, although they will assign partic-ular prosecutorial roles, such as preparation of thepetition, or presentation of the evidence, to the pro -bation of or judge. In at least nine jurisdictions,the participation of professional prosecutors, atleast in certain kinds of cases, is mandatory. Ineleven jurisdictions, such participation dependsupon the juvenile court's discretionary request orconsent. In some stares, authority for professionalprosecution is found not in statutes, but in courtrules, or in the -inherent power.' of juvenile courtjudges to procure needed assistance.

Statutes which do provide for mandatory ordiscretionary participation by prosecutors in juve-nile court proceedings typically offer few detailson the nature or scope of such participation. Whilea statute may restrict the categories of cases inwhich the judge is authorized to request prosecu-torial participation (e.g., in delinquency cases,

x

contested cases, cases where the juvenile is repre-sented by counsel, etc.), no criteria for guidingthe court's discretion, such as the complexity of thecase, are given.

There is recenr evidence, however, based uponnewly enacted ai-41 proposed rules and statutes,that there may be a decided trend in the directionof increased utilization of prosecutors in juvenilecourt. At the same time, it is clear that there islittle agreement on the precise nature and defini-tion of his role.

In an effort to obtain information concerningthe current status of juvenile court prosecution aswell as the views of juvenile court judges on therole of juvenile prosecution, a survey was conductedof juvenile judges serving in the one hundredlargest cities in the United States.

The survey data revealed that the representationof juveniles by attorneys has increased dramaticallysince the Gault decision in 1967. Although fullrepresentation of juveniles is not yet a reality,attorneys are playing a far more prbminent rolein juvenile proceedings than ever before and, indelinquency proceedings based upon serious.

offenses, are representing more than 75% of juve-niles in the majority of the surveyed cities. Theincrease in defense counsel participation in juvenileproceedings has been accompanied by a sharp risein the use of professional prosecutors. Almost95% of the responding cities reported thatattorney-prosecutors regularly appear in theirjuvenile courts. In almost half of these cities, theregular use of professional prosecutors began since

the Garth decision.Although they appear regularly, the frepency

with which attorney-prosecutors participate in

juvenile proceedings varies, but is greatest in cases

involving serious delinquencies. Almost 60% ofthe cities reported that professional prosecutorsappear for the state in more than three-quarters ofall felony-based delinquencies. Only about 30%of the cities reported that professional prosecutorsare used in more than three-quarters of their PINS

cases. Although levels of defense and prosecutor

itt% VCMCnt Nit( M similar variatii ti by Cas type,overall, maim.% representation of the icieihieappears to exceed that of the state.

An examination of the attorney-prosecutor'srank ipation in spe tourt tun. tions reveals Chit,by and large. his role is a restricted One. Ile;sank ipates in initial detentit in del isions or theirreview nor is his lawyer's expertise often utilizedin the preparation or review of ',chains. He repte-sent; :he state in pretrial motions. probable causehearings, tonsent tick tees ( here they are used )and, of &mese, at adjudication hearings. However,the attorney-prom:\ utor's presence is diminished atthe disposition stage and only rarely is he respon-sible for retoiamending dispositions to the judge.

Almost two-thirds of the I 37 responding judgeswere satisfied w all the extent of attorney-proset u-nion in their iurts hil onethird favored a moreextensive role for professional prosecutors. In andof itself. the present frequency of professionalprosecutorial involvement appears to be unrelatedto judges' attitudes toward extending the role ofattorney-prosecutors. However, judges in courtswith unbalanced adversary systems were far morelikely to approve :in increase in the role of pro.fessional prosecutors than were judges in courtsdisplaying a balance in the amount of prosecu-torial and defense counsel involvement.

A majority of judges favored the use of attorney-prosecutors in all juvenile erases. Support for broadparticipation by professional prosecutors was mostoften found among judges from jurisdictions whereprow( wins already participate heavily. Resistanceto a broadly inclusive role for professional prose-cutors was most apparent in jurisdictions whereprose ution is relatively inat five.

The judges surveyed were encouraged to includeextended comments concerning the use of attorney-prosecutors in the juvenile court. The judges whoreturned narrative tomments were unamnious intheir support of the use of attorney-prosecutors. Inthe vast majority of r-sponses, this support couldbe related to the increase in attorney representationof juveniles since Gault. While a number of judges

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raised spot ilk needs for professional prosecutionstub as in preparing or screening petitions, mostcited the need to maintain adversary balance intheir courts. Although there were philosophicaldifferences among judges with reference to Gin/it.the retognitions of the need for attornev-prosecu-tors in the juvenile court setting seemed to overrideany basic differences in judit :al philosophy.

As one of the oldest independent juveniletourts in the country, the Boston Juvenile Courthas achieved considerable respect as a court withhigh commitment -o the treatment and rehabilita-tion of juveniles and to the protection of juveniles'legal rights. In recent years. the court has movedincreasingly toward.the adoption of a full adversarymodel for the adjudication of juvenile offensesand, through the efforts of its presiding justice, hasencouraged the active participation of legal counselfor juveniles. With almost 90e; of all juvenilesrepresented by counsel, defense attorney represen-tation in the Boston Juvenile Court equals orexceeds that of any juvenile court in the country.Yet, in spite of the very widespread involvementof lawyers to represent juveniles, there has been nocorresponding increase in the use of attorneys torepresent the state. Like Massachusetts' districtcourts, which have always made extensive use ofpolice prosecution, the Boston Juvenile Court usespolice officers, exclusively, in the prosecution of itscases. In this regard, the Boston Juvenile Courtis among the small minority of hig-citycourts which still do nor utilize profession:1 prose-cution. The tremendous gap between ilia rneyrepresentation which is available to the state .endthat which is available to the juvenile makes theBoston Juvenile Court unique. .

The Boston Juvenile Court also lacks any intakescreening mechanism for the informal adjustmentor diversion of cases. The absence of in-court adjust-ment procedures plates greater power in the handsof the police in controlling the flow of cases thanthey might otherwise have. In examing the oppor-

tunities and needs for adjustment and diversionprocedures in the Boston juvenile Court, thelimitations of police prosecution assume criticalimportance.

Nine police officers are used to provide mostprosecutorial services in the Boston Juvenile Court.Eight are juvenile officers assigned to the threedistrict police stations which cover the area inBoston falling within the jurisdiction of the Bostonjuvenile Court. They generally spend the morningsin court prosecuting Lases which arise out of theirrespective districts and the latter portion of theday in performing. their regular responsibilities asjuvenile offit ers in their districts. A police sergeant,attached to headquarters, has overall supervisoryresponsibility for police prosecution in the court.None of the juvenile officers is an attorney or hashad any formal le al training.

In theory at least, all arrests of juveniles in aparticular police district are screened and processedat the starionhouse by a juvenile officer who, if thecase is not adjusted at the police station, will sub-sequently prose( ute the case in court. In fact, about3(ri of all cases are prosecuted by persons otherthan the regular polite prosecutors ( the juvenileofficers ). In most instances. these cases are pre-sented by the police officers who made the arrests.The regular polite prosecutors may also presentases in which they were the arresting officers.

The Massachusetts Defenders Committee pro-vides state-wide public defender services to indi-gents in criminal and juvenile proceedings. SinceJuly 1965, the Massachusetts Defenders hasassigned at least one lawyer to represent juvenilesin the Boston Juvenile Court and, in each yearsince it began its work in the court, has representedan increasing number of juveniles. Althoughprivately retained counsel occasionally appears inthe (oat and some c ases are still assigned to mem-bers of the private bar, the Massachusetts Defendershas clearly emerged as the court's dominantdefense tounsel resource, representing over three-quarters of those juvenile who do receive defensecounsel assistance.

xii

However, until very recently, the increasingcaseload carried by the Massachusetts Defenderswas not matched by a correspondin increase inthe number of attorneys assigned to the Bostonjuvenile Court and the annual average numberof cases per defender swelled from 40 in 1966 to619 in 1971.

In mid-1972, prior to the commencement ofour court observations, the Massachusetts Defen-ders increased in manpower in the Boston JuvenileCourt to five or six attorneysby far the largestnumber of public defenders ever to serve in thecourt. With this number of defenders available toprovide representation, the caseload for each defen-der since July 1972 would probably be well under300 cases a year, a considerable improvement overprevious years. It should also be mentioned thatthe Defenders came under new leadership in thesummer of 1972 with the appointment of a newchief counsel.

The exclusive use of police prosecutors in theBoston Juvenile Court, while effective in certainlimited areas, has not only hampered the properadministration of juvenile justice in the court as itis presently constituted, but has also created barriersto the introduction of needed new procedures andservices. In general, the prosecutorial activities ofthe juvenile c:ffi,:ers are carried out most success-fully in areas nich relate most closely to conven-tional police work. For example, the juvenile offi-cers presently do an effective job, within the scopeof their discretionary authority, of screening outmany inconsequential cases without court referral.The court's caseload, therefore, does not reflecta high proportion of trivial complaints which areindiscriminantly referred for judicial attention.

Also, the police prosecutors, together with thecourt clerk, have been quite effective in minimizingthe number of legally insufficient complaints whichare approved. Excessive charging is the rare excep-tion and while errors do occur in applying theproper legal charges to particular fact situations,they are not frequent. Complaints are well draftedby the clerk.

The commen.lable work of the juvenile officersat the complaint stage is undoubtedly strengthenedby their work as prosecutors and their daily contactwith the court. Their responsibilities for presentingthe government's evidence :it adjudicatory hearingson referrals and complaints u hie h they haveapproved provide them with firsthand exposureto the court's standards and requirements. Theircontinuing relationship with the court and theforceful criticism of its presiding justice have pro-duced police screening criteria which closelyapproximate those of the court itself. However,no amount of court contact is likely to overcomethe natural limitations of police prosecution. As theadversary demands on juvenile prosecution havegrown, the police prosecutors have been increas-ingly handicapped by their lack of legal training.in addition. because. they view prosecution as anappendage to their primary responsibilities as policeofficers, the juvenile prosecutors are properly gov-erned by an awareness that their post-complaintdiscretionary authority is and should be limited.They neither seek nor desire the broai discretion-ary and advisory responsiblities which prosecutingofficials normally assume and which are needed inthe juvenile court. It is clear that whatever theircompetence as juvenile officers, police prosecutorsare not now able to fully meet the prosecutorialneeds of the court. Moreover, it is important tono-e that police effectiveness at the complaint stagemay be dependent upon their participation in otherphases of juvenile court prosecution, and may beseverely reduced as they arc replaced by professionalprosecutors at other stages in the process. Accord-ingly, the guidelines for juvenile court prosecution,as set forth below, envisage an important role forprofessional prosecution at the complaint stagenotwithstanding the fact that many of the dutieswhich attended that stage are now capably per-formed.

The police prosecutors' lack of legal traininghas placed severe stresses on the court's adjudicatory

process and has impeded the development of aproperly balanced adversary system. Pretrial mo-

rims, infrequent in the past, are increasing withthe recent expansion in the number of publicdefenders assigned to the court. Even with theassistance of law students, the police are not ableto provide adequate representation of the State inthis area.

At the adjudcatory stage, the government opts-under a severe handicap in presenting all but

the most simple cases in the Boston Juvenile Court.Although the best of the regular police prosecu-tors have little difficulty in representing the Statein simple cases which do not involve complicatedfact situations' or issues of law, they are whollyunable to respond effectively to most objectionsand motions. Unable to argue points of law andoften failing to elicit testimony which is necessaryto establish all the essential elements of an offense.police prosecutors would seriously jeopardize alarge proportion of their cases were it not for thereluctant allowances which the court makes forthe untrained police prosecutors and the activeassistance which it provides. The judges them-selves routinely "argue" the government's sidewhen a legal issue is raised by an objection ormotion. On occasion, judges examine prosecutionwitnesses to ensure that the prosecutor does notneglect to establish all the essential elements ofgovernment's case.

With no competent State's representative thecourt is placed in the difficult position of dismissinga large percentage of otherwise viable cases or inter-vening to assist the prosecution. The interests ofthe community in the fair and efficient adjudicationof juvenile cases arc not furthered in either event.Judicial intervention on behalf of the prosecutionraises significant doubt concerning the fairness ofthe proceeding and is not likely to have a juvenileor his parents convinced that "justice is blind" inthe juvenile courts.

A substantial percentage of cases are prosecutedby the arresting officers, many of whom areentirely unfamiliar with the basic requirements ofpresenting the evidence at a trial. Moreover, inappearing as a witness, the police prosecutor can

no longer be regarded as the objective State's repre-sentative. An unfavorable finding by the courtmay be tantamount to an attack on the witness-prosecutor's truthfulness. Because of the prosecu-tor's personal involvement in the case, all theordinary elements of an adversary proceedingcross-examination, objections to evidencemaytake on the coloration of personal ((Indict. Underthese t =stances, it is extremely difficult to main-tain an appearance of fairness and propriety in thecourtroom.

Prosecutorial weaknesses have not previouslybeen fully exploited by the public defenders. Publicdefenders arc often inadequately prepared and their"surd ess rate" does not ctnnpare favorably withthat of private counsel who appear in the court.Although efforts to vitalize defender services inthe Boston Juvenile Court are under way, it is

doubtful whether a high standard of public defen-der representation can be achieved as long as thepresent system of prosecution exists in the court.Ironically, the absence of qualified prosecutors maydo more to inhibit effective defense representationthan it does to advance it. When judges feel com-pelled to intervene in support of lay prosecutors,normal adversary relationships break down. Objec-tions, if they are made, must be directed againstthe judge's own questions and he, in turn mustrule on their validity. Arguments on motions mayresult in an adversary contest between the defenderand the judge. This distorted adversary climate isnot conducive to aggressive admacy by publicdefenders who must appear before the same judgeson a daily basis.

The need for an attorney-prosecutor in theBoston Juvenile Court is also essential to the imple-mentation of more flexible approaches to the treat-ment of juveniles who are referred to the court.Many cases are referred to the court which cannotbe screened out by the juvenile officers but whichdo not require full adjudit ation. Stubborn children,runaways and other offenses which arc unique tojuveniles are among the kinds of cases which manycourts are successful in diverting or adjusting at

xiv

the intake stage. The guidelines, at the end of thereport, therefore, recommend the establishmentof an intake screening process which would seek toidentify and divert appropriate cases not requiringfull judicial action. The participation of a juvenilecourt prosecutor is deemed essential to the properoperation of an intake diversion process.

Also, far more cases are "contested" by defen-ders than appear to be warranted. The nominal,perfunctory defense which defenders provide inmany of these cases is rarely of any assistance tothe juvenile and diverts greatly needed time andresources from the investigation and preparationof other, more promising cases. Many of these"contested" cases could better be resolved throughthe development of negotiated consent decrees ora diversionary program prior to the adjudicatoryhearing. However, with no attorney-prosecutorpresent with authority to engage in such jointrecommendations and to approve them in behalfof the community, these opportunities are not gen-erally available.

Police prosecutors play virtually no role at

disposition and frequently are not present at thehearing. They almost never recommend disposi-tions to the court. The public defender, when hedoes make a recommendation, only infrequentlywill provide the court with useful supportinginformation. In this setting, the judge assumesalmost total responsibility for obtaining informa-tion, proposing alternative treatment plans, recom-mending diagnostic procedures, evaluating theclinic's findings and examining the probationofficer or others who may appear at disposition.Although the judges frequently invite suggestionsfrom those present, they are rarely forthcoming.There is almost no cross-discussion among defensecounsel, the police prosecutor, and probation staff.

The problem of providing effective services tojuveniles who are in need of help goes well beyondthe scope of the juvenile court's powers and thenature of its dispositional process. However, evenwithin the court's resource limitations, opportuni-ties do exist for strengthening the dispositional

process so as to advance the court's efforts inmeeting the rehabilitative needs of juvenilesthrough thoughtful, informed and responsive dis-positional programs. It is believed that the creationof a role for an attorney-prosecutor at the disposi-tion stage tan be an important first step in thatdirection.

First, there is no vehicle for the development ofjoint dispositional recommendations involving theparticipaton of prosecution, defense and probation.Although defenders often do consult with proba-tion officers prior to the disposition hearing andread the clinic reports and social histories, there islittle eviden.,: that their role is more than passive.Suggestions by defense attorneys concerning pro-posed dispositions are not always welcomed byprobation officers. The active participation of anattorney-prosecutor at disposition would providea natural focal point for the participation of defensecounsel in the exploration of suitable dispositionalalternatives and would encourage a broader coop-erative effort in securing responsive dispositionalrecommendations.

Second, probation officers should not be cast inthe role of adversaries to defense counsel. How-ever, at the disposition hearing, it is very difficultfor the defenders to contest the information, find-ings or recommendations submitted to the courtby probation or clinic staff without provoking thisvery consequence. As one defender put it: "Withthe police, we know we arc in an adversary role.We can handle that and be amicable afterward.With probation officers, especially the older ones,the situation is different. They are not used to beingcast as an adversary." Because the public defendersare dependent upon the probation staff for consid-erable information, they arc not apt to endangertheir relationship by challenging the probationofficer at the disposition hearing. The presence ofa prosecutor at the disposition hearing is designedto encourage a more vigorous examination of dis-positional alternatives while at the same time pro-viding a protective "buffer" for non-legal probationand clink staff whose recommendations are indispute.

xv

Lastly, the community's interests in.protecting itssecurity do not cease at the adjudication stage andneither should its representation. In the small num-ber of cases where confinement is deemed vital tothe rehabilitation of the juvenile or to protect thecommunity from a substantial threat to its safety,it should be the prosecutor's responsibility to arguefor commitment. In the vast majority of cases, how-ever, the prosecutor would be expected to encour-age the least restrictive dispositional alternativeswhich are consistant with the treatment and dis-ciplinary needs of the juvenile.

V.

Juvenile prosecution in six other jurisdictionswas also reviewed. Informaton for three courts,Atlanta, Salt Lake City and Seattle, was derivedprimarily from Three Juvenile Courts, A Compara-tive Analyis, prepared by the Institute for CourtManagement, University of Denver Law Center,in 1972. On-site visits were made to the otherthree jurisdictions: Hartford, Providence and"Metropolis" ( a large eastern city ).

In both Atlanta and Salt Lake City, full-timeprofessional prosecutors are used. However, inneither city does the prosecutor play a major role inscreening court referrals or preparing and review-ing delinquency petitions. Also, because investiga-tive work, selection and interviewing of witnesses,designation of charges and pre-trial screening, gen-erally, are conducted outside of the prosecutorssupervisory authority, their role is very limited.This has resulted in inadequate preparation fortrial, inadequate screening and preparation of peti-tions, and insufficient guidance to police and proba-tion regarding legal requirements. The prosecutorsplay little, if any, role at the disposition stage.

In response to concern over the broad discre-tionary authority wielded by probation in the kingCounty Juvenile Court (Seattle), the function ofprosecution has been expanded to include deter-mining whether sufficient evidence exists towarrant the filing of a delinquency petition, super-vision of the preparation of delinquency petitions

and the prose( ution of contested cases. The prose-cutor's office is also expec teed to represent the state

at preliminary hearings, it disposition, and proba-tion revocation hearings. In addition, the prosecutoris required to provide broad assistance to the policein the development of operational Anticlines and

training of personnel.

The juvenile prosecutor in Seattle now hasconsiderable administrative control over the pre-sentation and prosecution of juvenile cases. Thescope of his responsibility and participation in thejuvenile justice process far exceeds that which isfound in most jurisdictions. While this degree ofauthority is responsive to the legitimate needs ofthe juvenile justice system, there may be a dangerin the tendency to use the prosecutor's office aslegal advisor to the court beyond the context ofany court proceeding. This use, as legal advisor tothe court, may conflict with the prosecutor's roleas adversary litigant before the court. Moreover,the recommendation of court practices and proce-dures should not become the province of the prose-cutor's office to the exclusion of juvenile defendersand others whose views, as advocates of juveniles'rights. are essential to balanced consideration Of

proposed changes.

Juvenile prosecution in the Rhode Island FamilyCourt is conducted by city and town solicitors fromthroughout the state. They prosecute those casesarising out of action taken by their local policeagencies. As in Atlanta and Salt Like City, thesolicitors do not review petitions before they arefiled, resulting in an excess of legally insufficientpetitions and a lack of uniform standards for courtreferrals. Moreover, because many of state's solici-tort regard juvenile prosecution as a matter of lowpriority, they are frequently unprepared for trialand repeated continuances arc common.

A committee of judges, appointed in 1969 tostudy the question of juvenile court prosecution,concluded that an independent juvenile court pro-secutor's c having broad authority for theprosecution of petitions against juveniles shouldbe established. No action has been taken on the

proposal and the decentralized, incomplete prosecu-torial services which are now provided continue tocause serious problems in the court.

In Metropolis, police prosecution in juvenilecourts was replaced by an experimental prosecutorprogram operated by the City Attorney. Emphasis

was to be given to post-intake petition screcnink,and drafting, participating in efforts to resolveappropriate cases prior to hearing and representingthe petitioner at adjudicatory and probation revo-cation hearings.

For a variety of reasons, including manpowerlimitations, little effort has been made to achievethe first two objectives. As a consequence, it is esti-mated that twenty to thirty percent of all petitionsare defective and must be amended, withdrawn,

or dismissed. In addition, an already overburdenedcourt system is fur-her tax& by having to hear

a great many cases in which there is no real disputeover the facts or which do not belong in court.Prosecutors are impeded in achieving the thirdobjective by a hick of investigatory and clericalstaff. Cases are poorly prepared and presented andjudges are highly critical of the performance of thejuvenile prosecutors.

Notwithstanding their present deficiencies,

juvenile court judges regard the use of attorney-prosecutors as a substantial improvement over theUse of police prosecutors. However, it is clear thatwithout substantial changes in staff, program con-tent and commitment to the child welfare respon-sibilities of juvenile court prosecution, the Metrop-olis program is likely to remain vastly inadequate.

The Hartford (Connecticut) Juvenile Courtuses the services of private attorneys to prosecute.They are appointed on a case-by-case basis froman approved list to prosecute the small percentageof cases (contested) which are not adjusted at theintake stage. Prosecutors perform no intake screen-ing functions but MUFT approve cases referred tothem for prosecution. Until recently, these trans-actions were conducted by mail and lengthy delayswere encountered in completing the screeningprocess. Now, one prosecutor comes to the court

xvi

each week to screen all cases collected for hisreview, but delay, still occur in the rural areaswhich fall within the court's jurisdiction. The courtis also confronted with serious delays as a resultof inadequate investigative staff. Furthermore, thereis criticism concerning the quality of petitions inuncontested cases which are not reviewed by theprosecutor and for the need to have probation staffrepresent the government at detention hearings.

Given the relatively small number of contestedcases, the need for a full-rime prosecutor has beenquestioned. However, in view of the need toexpand the role of prosecution in such areas aspetition drafting and review, court intake, pre-trial hearings, investigation, etc., it is doubtfulthat exclusive reliance on part-time prosecutorsappointed from the private bar will be feasibleor desirable in the future.

VI.

The proposed guidelines for juvenile prosecutionwhich are set forth below in summary seek to meetthe growing needs for competent adversary repre-sentation of the state in juvenile delinquency pro-ceedings, while also achancing the child welfareorientation of our juvenile justice system. Althoughdesigned for application to the Boston JuvenileCourt, the guidelines address the range of issueswhich are now being considered in jurisdictionsthroughout the country. Because the problems ofcreating new roles for juvenile prosecution areonly now beginning to emerge, few jurisdictionshave thus far developed satisfactory responses. Thekinds of difficulties which confront the BostonJuvenile Court in providing qualified prosecutorialservices have been noted, in greater or lesserdegree, in almost all jurisdictions. We are, there-fore, confident that the guidelines will providean important foundation for all jurisdictions seek-ing ways to meet the many new challenges whichhave come about since Gamic.

Seven general principles for juvenile courtprosecution are advanced in the guidelines. Insummary, they are: I) advocacy of the state's

interest in juvenile court includes concern for com-munity protection together with promotion of thebest interests of the juvenile; 2) in balancing thedemands of community protection with his respon-sibilities as p.trozi patride, the juvenile prosecutorshould consider the circumstances of each parti-cular case; 3 1 as advocate, the juvt:nile prosecutorshould act to ensure proper preparation and pre-sentation of the state's case at all stages and shouldalso participate in efforts to advance legitimate lawenforcement and child welfare goals; 4) certainpunitive objectives ( e.g.. retribution) are inappro-priate elements of juvenile prosecution; 5) thejuvenile prosecutor should seek to encourage earlydiversion of appropriate cases and to impose theleast restrictive alternatives possible; the prosecutorshould proceed only on legally sufficient complaintsor petitions even where a need for treatment isindicated; 6) the juvenile prosecutor shares respon-sibility for ensuring that pre- and post-dispositionrehabilitative programs are carried out and thatservices and facilities for treatment and detentionmeet proper standards; and 7) the juvenile prose-cutor has a duty to promote justice by insisting onfair and lawful procedures.

Pursuant to the foregoing general principles,the guidelines for prosecution in the Boston Juve-nile Court recommend the establishment of anindependent Office of Prosecution with broadresponsibility for the preparation and prosecutionof all cases involving juveniles. The prosecutor'sarea of prehearing responsibility include consulta-tion with police administrators regarding enforce-ment policies and methods in juvenile cases, andinstruction and assistance to police officers to assure

effective law enforcement procedures consistentwith applicable legal requirements. He is urged torepresent the State at detention and probable causehearings ( where they are held) and to approvepolice requests for arrest and search warrants.

The prosecutor has functions at intake in relationto three objectives: 1 ) screening of prosecutionsfor legal sufficiency, to ensure that any coercivetreatment, whether administered on a formal or

xvii

"informal" basis, rests on an adequate legal basis;2) prosecuting or diverting legally sufficient casesaccording to "public policy.' consderations regard-ing the nature of the conduct alleged; and 3 )prosecuting or diverting legally suffiient cases onthe basis of the juvenile's individual needs or pro-pensities. The prosecutor is also urged to encour-age diversion of juveniles after the complaint orpetition is filed, but prior to adjudication throughthe recommendation of consent decrees or continu-ances without a finding.

The prosecutor's responsibilities for preparingcases for hearing include selecting and interviewingwitnesses, and supervision of investigative activities.The prosecutor should represent the state at hear-ings on pre-trial motions and should ensure thatliberal discovery is available to the defense. It isalso important that the prosecutor establish cooper-ative relationships with defense attorneys in arriv-ing at prosecutorial decisions which fairly reflectthe needs of the juvenile and the community. Theprosecutor is also required to represent the State atall adjudicatory hearings. In exceptional circum-stances, this responsibility may be delegated to non-professionals (e.g.. police prosecutors or law stu-dents ), bur only in a limited range of cases andunder the close supervision of the prosecutor.

. The guidelines impose a continuing role for thejuvenile prosecutor at the disposition stage. He isobliged to ensure that only reliable evidence isintroduced on the question of disposition and topromote the availability of adequate disposi-

tional recommendations through consultation withdefense and probation. His presence at dispositionserves the further purpose of freeing probation and

clinic staff from the burden of advocacy and ofproviding a more orderly forum in which expertrecommendations may be contested.

It is also deemed desirable for the juvenile pros-ecutor to represent the State at appeals and col-lateral proceedings in the juvenile court or othercourt. He should represent the State in such post-dispositional matters as probation revocation pro-ceedings. Juvenile prosecutors should be attorneyswith special training in juvenile law and in thechild welfare goals of the juvenile court. In addi-tion to lawyers, the prosecutors staff should includeadequate numbers of trained social workers, crim-inal investigators and paraprofessionals. Finally,he should maintain close, cooperative relationshipswith social service agencies and community groupswho are involved in the advancement of childrens'rights and welfare.

CHAPTER I

INTRODUCTION

As noted in the 1967 report of President'sCrime Commission, youth is responsible for a sub-stantial and disproportionate part of the nationalcrime problem.' According to the recent study ofthe Committee for Economic Development, Reduc-in Crime ,md Assuring Justice, "Nationwide, overhalf of all those arrested for the seven Indexcrimes are under 19 years of age; one fifth areI i or younger." " Even more specifically, theUniform. Crime Reports for 1971 reflect that ofall the arrests made during 1971 for Index crimes,persons under 18 were involved in 32 percent ofthe arrest for robbery;' 35 percent of the arrestsfor burglary;' 50 percent of the arrests for larceniesover 550;" 53 percent of the arrests for auto thefts;'and 10 percent of the arrests for homicides:Although similar figures were not available forforcible rapes and aggravated assaults, the UniformCrime Reports indicated an increasing percent ofthe arrests made for these offenses are for personsunder 18 as well.' Most of these cases, as well asthose for other criminal conduct, become the

l Presidents Commissi...t on Los Enforcement and Admin-istrAtilm of justice, TIT (Ade o 1i* 14 (rime ru d Frt Social55 I% -5 at 55.

Index offenses include murder and non-negligent man-slaughter. forcible rape, robbery. aggrevared assault. burglary.larceny $50 and over, an f motor vehicle theft.

3 Committee for 1con,4nic Deselopmnt. Reducing Crimeand Atiliri 'make 11 .

Federal bureau of Investigation, Crime in the UnitedStates, rnif,rm tie I at 18 (19-2 I.

U.. at 21," 1.1. at 25.

7 Li. a'. at It.

" at 12.1

responsibility of our Nation's juvenile courtsystem."

In 1970, over one million juvenile delinquencycases, excluding traffic offenses, were handled byjuvenile courts in the United States and a signifi-cant upward trend in cases has occurred annuallyfor over 10 years." The juvenile justice system thatis responsible for responding to the criminal actsof young people, as well as to a range of other mat-ters (such as truancy, neglect, dependency, etc.),has been under severe attack in recent years. Muchof this criticism, as will be discussed below, hasbeen leveled, and rightly so, at the lack of proce-dural safeguards for juveniles in the juvenile justiceprocess and the failures of traditional correctionalprograms and institutions to deal with the prob-lems and needs of delinquents. In response to theformer, the Supreme Court ( although in some-what ambivalent fashion) has expanded the pro-cedural rights of juveniles and has extended theright of counsel to juveniles in juvenile delin-quency proceedings. In response to the growingattack on juvenile correctional programs, activemovements arc underway nationally to close downlarge scale institutions, to direct juveniles awayfrom the juvenile justice system if at all possible,and to create a range of community "treatment"programs.

In all of this development, virtually no atten-tion has been paid to the question of who repre-sents the State in juvenile delinquency matters or

I" The umer age range jurisdiction of juvenile courts nor-mally varies from S. Further, in many jurisdictions, certainoffenses can be tried either in a juvenile court or in a criminalLiam.

" U.S. Department of Health. Education. and Welfare. _betetide cwirt Stathtics 197. at 2 (1972).

t

his role in protecting society against criminal beha-vior while. at the same time. trying to meet thesupposed priority objective of the juvenile justicesystem-responding compassionately and effec-tively to the needs of juveniles.

The acc cited notion that acivc.r...iry conflic t wasbest kept out of juvenile court was responsible forthe general absence ot juvenile court prosecutorsfrom the law. prat rice and literature of the juvenilecourts in the pre-Gduit era. This was consistent withother implications of the prevailing "sot ial service"view of the juvenile court, according to which pro-ceedings were to be informal and non-criminal.Although it is not yet clear how far and to whatextent the Supreme Court will extend constitu-tional guaratitc:es to juvenile court proceedings. itis c leaf that the traditionally conceived juvenilecourt has been c hanged irrevocably. Because thechanges that have occurred are fundamental, theyrequire serious reconsideration of the proper roleof prosecution in the juvenile justice system.

As the results of the Center's National Surveywill indicate. prosecutors from offices such as a dis-trict attorney's office have increasingly been utilizedin juvenile courts since Gault. particularly in thehandling of delinquency cases. This means that theera of having police officers or probation officers.'present" a case in juvenile court ( or simply ofhavinr, a judge elicit information from the juvenileand the witnesses ) may well be over. This transi-tion could be an essential one, but it should not hemade without careful consideration of the appro-priate role of prosecution in a juvenile justice con-text and the implication of this role to othersworking within the process. The importance ofhaving careful development in this area led to thecreation of this project.

Funded by the National Institute of LawEnforcement and Criminal Justice, this reportrepresents the first phase of a two-phase researchand development project centered upon the roleof the prosecutor in juvenile delinquency proceed-ings. The purpose of the two-phased project is to:( I ) examine the existing system of prosecution inan urban juvenile courtthe Boston Juvenile

2

Court; ( 2) based upon such examination and otherresearch, establish appropriate objectives for juve-nile prosecution; and ( 3 ) develop, implement,and evaluate a model juvenile prosecutor projectwithin the Boston Juvenile Court as a guide to allinterested jurisdictions.

Up to now, there has been little empiricalresearch directly concerned with the juvenile pro-secutor's role. The possibility that his can be a keyrole, involving a variety of significant discretionaryjudgments and presenting a major avenue for theintroduction of constructive changes. has certainlynot received the detailed study and examination itdeserves. Indeed, concepts of juvenile court reformhave focused more often on development of pro -

bation. staff, the juvenile court judge, or defensecounsel than on the potential of an improved pro-secutorial function. There is an obvious need,therefore, to give attention to the prosecution roleboth because of the impact it can ultimately haveon juvenile cases and because of the growing atten-tion of the courts to procedural requirements in thejuvenile court setting.

The report that follows contains the findingsand conclusions of the comprehensive research thatwas undertaken of the prosecution role in the Bos-ton juvenile Court. The report also assesses therelevancy of those findings and conclusions to otherjuvenile courts based upon both literature and fieldresearch. Finally, after setting forth desirableobjectives for prosecution at the juvenile level, thisreport establishes guidelines and standards for anexperimental prosecution program which mightimplement its recommendations. It is anticipatedthat the model proposed in this section of thereport will serve as the basis for the experimentalprosecution program which will by implementedand evalaated as part of phase two of this project.

The research undertaken during phase onewithin the Boston Juvenile Court included: legaland literature research, extensive observations,interviews, and analysis of statistics and case files.Research within the court focused upon all partsof the juvenile justice process to which prosecution

might relate from initial handling by policethrough dispositional stages.

Founded in 1906, the Boston Juvenile Court isthe second oldest juvenile court in the UnitedStates. It has the largest juvenile caseload of anyfirst-instance court in Massachusetts; in 19" I, over2,000 such ases were recorded. The Court exercisesjurisdiction over alleged delinquents and "way-ward" children between the ages of seven andseventeen and over neglectec! children undersixteen.

One full-time Justice and two Special Justicessit on the Court. Police officers from the BostonPolice Department represent the Stare in almostall cases. t This practice makes a study and newmodel of the prosecutorial role important.) Inneglect cases, a representative of a social welfareiagency often assists in the presentation of the case.In addition, the Court has a full-time probationstaff of sixteen ( the staff operates some of its owncommunity-based services), a juvenile court clinic,and an affiliation with a guidance center to whichit sends special cases.

Besides the research within the Boston JuvenileCourt, a national survey was conducted to ascertainthe state of the art in juvenile prosecution. recentcomprehensive studies of selected courts werereviewed, brief field visits were made to four otherjuvenile courts. and all other literature relevant toour areas of concern was analyzed.

Throughout phase one we raised and tried toformulate answers to the questions: "What shouldthe juvenile prosecutor be"; "How can he bestserve the individual child, the public, and thejuvenile justice system"; "Does the traditional roleof the prosecutor require redefinition"; "Arebroader discretionary powers at intake and disposi-tion necessary or valuable"; "What will the man-power and financial requirements of an improvedrole be"; "How should the prosecutor relate to

3

other agencies within the process?" Both theresearch phase and the later demonstration phaseattempt to deal directly with such questions withinthe context of a specific courtThe Boston Juve-nile Court. The findings and recommendations,however, hopefully should have a wide effect inmany specific contexts and in the philosophy ofjuvenile justice systems as a whole.

With reference to the proposed model for juve-nile prosecution, an effort has been made to relateanswers to the above questions and findings andrecommendations of this report to: I) concreteobjectives and priorities for juvenile prosecution;2) specified responsibilities of prosecution atvarious stages of the juvenile justice process; 3)recommended relationships between prosecutionand other juvenile justice agencies and personnel;and 4) recommended criteria for a juvenile pros-ecutor's office in areas such as personnel require-ments, training, and supporting services. Althoughit is important-to address the role of prosecutionor government representation in other types ofjuvenile proceedings, this project has been confinedto juvenile delinquency matters. It is recommendedthat studies of representation in these other areasbe undertaken as well ar the earliest possibleopportunity.

The report that follows examines: 1) thegrowth and development of the juvenile court sys-tem; 2) the growth and development of the roleof prosecution in the juvenile court; 3) a pre-liminary assessment of appropriate objectives andfunctions for prosecution in the juvenile court; 4)an examination of the nature and character of theBoston Juvenile Court; 5) an analysis of the roleof prosecution in this court; ) an assessment ofthe relevancy of the findings and recommendationsfor the Boston Juvenile Court to other representa-tive courts; and l) suggested guidelines for anexperimental juvenile prosecution project.

CHAPTER II

THE DEVELOPMENT OF THE JUVENILE COURT SYSTEMIN THE UNITED STATES

A. EARLY DEVELOPMENT

Legal institutions concerned with juvenile neg-lect and delinquency were in existence long beforethe establishment of the first "modern" juvenilecourt in Chicago in 1899. A brief review of theseearly developments offers a useful perspective onthe shaping of the role of prosecution in juvenilecourts.'

A major influence on the development of Amer-ican juvenile law can be traced to the -pro's['atrial. jurisdiction of English chancery courts.These courts were primarily concerned with theprotection of juveniles' property rights, althoughtheir authority extended to cover the welfare ofchildren generally. Their mandate was founded onthe notion that children and other incompetentswere subject to protective guardianship in the nameof the part r patri.w. the King.' Chancery courts inthis country took on the same obligations andauthority regarding child welfare, including respon-sibility for neglected and dependent children.' Itis noteworthy. however, that chancery courts neverhad jurisdiction over children charged with crim-inal conduct. Until the creation of separate juvenilecourts in the late nineteenth century, criminal juris-diction over juveniles lay with the regular criminalcourts.

I The following historic41 discussion borrows heavily fromommission on Law Enforcement and A,Iministra-

tion of Justice, 74.1 Ripot: code thlItiqmori .19.1

re,Aah I 9(.- I. especially pp. 2 L and l; Po eviler.1 I 11.1,,rf. Per,rt, in e. 22 Stan. I.. Rev.

.lire r Shaft/Arm. 2 Evert. Williams 104 I r" 2 1: seygeneral I y furt nth. I'nrred St.stc.( 11924 t.

.11.t,u. %mr., note 2. at 3 3.

4

The basic structure an I dimensions of our cur-rent legal approaches to juvenile neglect and delin-quency were formed by developments whichoccurred in the nineteenth century. In response toa number of factors, important among which wereincreased urbanization, industrialization and immi-gration, concern about crime prevention led tovarious reform activities in the held of child wel-fare. According to prevailing environmentaltheories about the etiology and treatment of crime,certain segments of the population--notably theurban, immigrant poorwere seen as particularlyprone to excesses of immorality and criminaldeviance. The childrenof these "deprived classes"constituted an "endangered" group, some of whommight be "saved" by prompt intervention at theearliest signs of corruption. Such intervention, pri-marily activated by voluntary organizations ofmiddl -class "child-savers," required removal of thechild from his corrupting environment to a dif-ferent setting, where salvation might be achievedthrough a program of discipline and moralenlightenment.

The programs of intervention which were estab-lished in various states gave rise to significant legaldevelopments of three sorts. The first was an expan-sion of state jurisdiction to intervene coercively inthe lives of children. Since such characteristics aspoverty", "ignorance" and "vice" were seen as pre-

cursors of future criminality, and therefore asreliable indicators of the need for "reformation,"it made no sense to restrict the state's power tocommit children to those found guilty of criminalconduct. Accordingly, ordinances and legislation

were enacted giving courts power to commit forreformation children "who are destitute of properparental care. wandering about the streets, com-mitting mischief, and growing up in mendicancy,ignorance. idleness and vice." l An important con-sequence of this expansion of jurisdiction was toshift the focus of judicial attention from factsestablishing the child's commission of particularacts, to those establishing a general condition orstatus.

The second important development was the crea-tion of specialized residential "treatment" facilitiesfor the reformation of pre-delinquent children, inphysical segregation both from adult convicts andfrom other juveniles who were already corruptedbeyond salvation. The first of these was the NewYork House of Refuge, established in 1825, and wasfollowed shortly by similar state institutions estab-lished in Pennsylvania and Massachusetts. To these"reform schools" the courts committed childrenfound guilty of criminal violations, as well as thosesubject to jurisdiction for acts of potential delin-quency.

The third development consisted of extendingthe notion of separate, specialized treatment ofjuveniles into court and even pre-court procedures.In 1861 , the Mayor of Chicago was authorized toappoint a commissioner to hear minor chargesagainst c hildren and determine the proper disposi-tion. Six years later, the responsibility was entrusted

to a judge. In Massachusetts in 1869, an agent forthe state was required to be present at any proceed-ing where a juvenile could be confined in areformatory, and was also responsible for locating

foster homes if any were needed. In 1870, separatehearings for juveniles, were required in Boston, apractice extended to the entire state in 1872. Andby 189s. Rhode Island, New York and Massa-chusetts had all enacted provisions for separatesessions, dockets and records in juvenile cases.

(. hi. Aitu OrAinante. 1M1.5. .14-ted in F. Atonic'Iii.!,. e' R. t .von 4.1 111.1,r1..11 Pir.ptant.. 22 Stain. t.. am11K'. 121s I t di, the 1mis PtnmylvAniit St 1 te

pe p 121,t5 At n

Rhode Island also required separate detention ofchildren awaiting trial.'

Against the background of these earlier devel-opments, the well-known Illinois Juvenile CourtAct followed in 1899, and directly inspired the pas-sage of similar legislation throughout the country.Briefly summarized, the fundamental purposes ofthe Act, which were consistent with the trendsestablished by developments earlier in the century,created a state-wide "special court" before whichpee-delinquent juveniles could be brought; author-

that court to assume jurisdiction over such chil-dren on the basis of "pre-delinquent" statuses, suchas ignorance, poverty, or exposure to vice, as wellas on the basis of criminal activity; segregated pre-

delinquents from adult criminals, both physicallyand (by avoiding stigmatic labeling) psychologi-cally; and utilized individual treatment to preventfuture delinquency. This treatment was to beadministered by the judge and other staff withinor available to the court, using both medical andsocial science techniques. In spirit, the juvenilecourt was designed to function as a "non-legal"social agency, providing needed care to endan-gered children, and resorting to coercion only asnecessary to serve the best interests of the child.Hearings were to be conducted informally and inprivate, legal "technicalities" were to he put aside,and records were to be kept confidential. Becausethe judge and probation staff were to act as "'wrensparade," in the child's best interest, claims that thechild needed representation by counsel or otherprotection of his "rights" were viewed as mis-conceived. The court's process was to be paternal-istic rather than adversary. The function of theproceedings was to diagnose the child's conditionand to prescribe for his needsnot to judge his acts

and decide his rights. In such a proceeding, it wasless necessary to conduct a scrupulous inquiry intothe facts establishing a boy's particular misconductthan to arrive at a benign assessment of his essential

"character."

111.itu. ex/fr., note .2. at IS 19.

B. CHALLENGE AND REFORM

Notwithstanding several early constitutionalchallenges to the "informality" of juvenile courtprocedures. the Illinois system spread rapidlythroughout the United States, and for the first halfof this centur) operated without serious challengeon legal grounds. Gradually, however, there arosea sense of skepticism and disillusionment with thejuvenile court "reform." This growing criticismwas reflected in legal developments during the1950's and 1960's, reaching a crescendo in theinfluential President's Commission's Task Force onjuvenile Delinquency and Youth Crime in 1967,and in the Supreme Court's decision of the sameyear In re Gault." The essential thrust of Gault( and of the Commission's recommendations) wasthat greater procedural formality in juvenile courtswas needed in order to safeguard the constitutionalrights of juvenile litigants. Developments whichhave taken place since 1967 have, for the mostpart. continued this trend.

There is no need in this report to undertakea detailed review on the basic "failures" of juvenilecourt system which have precipitated the recentand continuing changes in its legal structure. It issufficient for our purposes to mention some of thereasons for this "legal revolution" and to presentour view of its likely outcome. In this discussion,we shall focus, as by and large have the courts andcommentators, on the juvenile court's delinquencyjurisdiction founded on commission of criminalacts.

The "traditional" juvenile court was conceivedas part of a system of justice which expressed con-siderabl leniency and tolerance toward juvenileswho engaged in anti-social conduct. Instead ofprocessing such children through the criminal jus-tice system, where they might be traumatized byformal, accusatory procedures, stigmatized as crim-inals and subjected to punishment, the state woulddeal with their transgressions in an ex parte civilprocess. which was benign and paternalistic. In thejuvenile justice system, children would be screened

, S I 1 196'

6

by specialized police and court intake personneldevoted to the goal of avoiding judicial proceduresaltogether. If in "the best interests of the child"the latter proved unavoidable, hearings would beconducted before judges specially trained to viewthe child's offense as a symptom of underlyingpersonal maladjustment. Courtroom procedureswere to be therapeutically informal, and the judge'sdisposition designed to provide the child with. aneffective rehabilitative program. Eventually, thechild would return to the community neitherstigmatized nor punished, but instead restored tothe paths of responsible and productive citizenship.

Over the years. this conception of the juvenilecourt as a kind of "social service agency" was under-mined by an increasing recognition of the realityit masked. That reality was remarkably similar tothe ordinary criminal courts. The major differencesbetween them, it emerged, were two: firs:, thepunishment administered in juvenile proceedingswas disguised in a sincere but unrealistic cloak ofgood intentions; second, the procedural safeguardsunder the Federal and State Constitutions requiredin criminal cases did not apply in juvenile delin-quency cases because the juvenile court ostensiblydispensed "help" and not punishment.

Official recognition that a punitive reality existedbehind the rhetoric of sole concern for "rehabilita-tion" of juvenile offenders emerged in two SupremeCourt cases: Kent t.. United States? and in re Gault.'The change in attitude came for at least threereasons. First, it was recognized that any processby which an individual is incarcerated in a stateinstitution on the basis of his "misconduct" ispunitive in the perceptions both of the individualyouth and of society at large. The stigma attachedto juvenile justice euphemisms such as "delinquent"support this view. Labeling proceedings as "civil"instead of "criminal," and incarceration as "treat-ment" instead of "punishment" does not alter thepunitive nature of applying state power to sanctiondeviant conduct. Second, the State's proven failureto provide adequate resources of manpower and

7 i U.S. 5.41 I 1966U.S. I f196").

facilities to ensure the availability of reasonablyeffective rehabilitative processes at all stages of thejuvenile justice system reinforced a view of thesystem as basically punitive. Residential detentionand treatment facilities for juveniles were notori-ous inadequate. Finally, even assuming society'swillingness to fund a rehabilitative treatmentprocess for juveniles, our present ignorance of non-punitive rehabilitative techniques cast doubt on ourability to respond benignly and effectively tothreatening m isconduct by juveniles.

The reviQionist view of the juvenile justice sys-tem presented in the Kent and Gaiilt cases neces-sarily required a new definition of the constitutionalframework within which the juvenile court had tofunction. To the extent that juvenile court treat-ment of offenders resembled the operation of crim-inal courts, it became necessary to consider theapplication of constitutional criminal procedureprotections to juveniles. The legal "revolution" injuvenile justice consisted in applying constitutionaldoctrines of "fundamental fairness" under the dueprocess clause of the Fourteenth Amendment torequire that certain procedural guarantees must berespected in juvenile delinquency proceedings. TheSupreme Court's decisions to this effect were basedon the view that under traditional informal process,injustices might occur or be perceived to occur.In Gault and succeeding cases, the Court attemptedto inject minimal fairness by holding various rightsapplicable to the trial of delinquency cases: theright to notice of charges, to the assistance of coun-sel, to confront and cross-examine opposing wit-nesses, to the privilege against self-incriminationand the right to have the state's case proved beyonda reasonable doubt. Although these holdings weretechnically limited to the adjudicatory stage ofthe proceedings, they spurred extension of theseand certain other rights previously available onlyin t.riminal prosecutions, to various pre and post-trial stages of juvenile proceedings. The adoptionand extension of these rights, involving suchdiverse issues as the presence of counsel at policeidentification line-ups and the right to humane con-ditions in detention and correctional facilities, have

7

proceeded rapidly in a multiplicity of forms includ-ing State and Federal court decisions, legislativeenactments, administrative enactments, and courtrules.

But this trend toward increased formality in thejuvenile justice stem has provoked great con-troversy and uncertainty. Many fear that rejectionof the traditional model of "benign informality"will result in application of so many criminal proce-dures to the juvenile court system that it will loseits unique potential for responding to juvenile mis-conduct rehabilitatively. The right to counsel, theprivilege against self-incrimination, suppression ofillegally seized ( but material) evidencetheseand other features of adversary proceedings arehardly conducive, it is argued, to the maintenanceof an atmosphere of mutual concern and coopera-tion in which the best interests of a troubled juve-nile can be promoted. In its most recent case in thefield, MeKeiver v. Pennsylvania," the SupremeCourt expressed these very concerns. In refusingto extend the Sixth Amendment jury right to thejuvenile justice system, the Court reiterated its faithin the unique rehabilitative aims of that system,and its reluctance to impose further formalitiesnow existing in the criminal process. The Court'smethod of analysis appeared to be that of weighingthe juvenile's need for any particular proceduralprotection against the detrimental impact thereofon the State's chosen process for informal, non-criminal adjudication and rehabilitative treatmentof juvenile offenders.

For the time being, then, we are left with ahybrid system of juvenile justice. The courts haveneither repudiated the rehabilitative goals of thesystem, nor subjected it to the same proceduralrestraints as the criminal justice system. At thesame time, the law has sought to ensure that depri-vations of juvenile liberty, even if kindly motivated,take place under sufficiently formal procedures tominimize the risk of arbitrary or unwarrantedaction. The juvenile court's procedural frameworkshould not assume the identical retributive anddeterrent aims which remain elements of the (rim-

402 U.S. 52s 11i) "3 .

final law tin fact, the aims of the criminal lawrequire reassessment ), but neither should it beforgotten that the court does have responsibilityto protect society from juvenile misconduct. For-mal, procedural guarantees appear to be mostappropriate to those stages and functions of thesystem in which anti-social conduct by the juvenileis defined and sanctioned; greater informality andfewer "rights" are justified in those aspects of thejuvenile justice system u here pursuit of the child'sbest interest does not conflict with any higherobligations to the community at large. As the Presi-dent's Commission on Law Enforcement andAdministration of Justice state in its 1967 report:

Rehabilitation of offenders through individualizedhandling is one way of providing protection, andappropriately the primary way in dealing with chil-dren. Rut the guiding consideration for a court oflaw that deals with threatening conduct is neverthe-less protection of the community. The juvenilecourt, like other courts, is therefore obliged toemploy all the means at hand, not excluding inca-

8

pacitatiun, for achieving that protection. Whatshould distinguish the juvenile from the criminalcourts is their greater emphasis on rehabilitation,not their exclusive preoccupation with it.'°

For juvenile courts to survive as distinct institu-tions dedicated to non-punitive treatment andrehabilitation of offenders, they will have to con-tinue to absorb the impact of judicial and legislativeactions which "legalize" and "formalize" theirprocesses, without surrendering their distinctivegoals. Valid criticisms of existing procedures,whether on grounds of unfairness or inefficiency,should be anticipated, and solutions tailored whichwill interfere as little as possible with the substan-tive goals of the system. Given this background, itis now important to examine the traditional role ofprosecution in the juvenile court and the impact,both real and potential, upon this role.

1"President's Commission on Law Enforcement and Admin.iwation of Justice, The Challenge of Crime in a Free Society(196') at 81.

CHAPTER III

THE PROSECUTOR'S ROLE IN THE JUVENILE COURT:FORMER STATUS AND CURRENT TRENDS

A. THE PROSECUTOR'S ROLEHISTORICALLY

The traditional juvenile court process did notinclude a "prosecutor" in the sense of a legallytrained person with responsibility to represent thestate in court proceedings. For several reasons, theinclusion of sue h a role would not only have beenseen as unnecessary, but its positively harmful tothe proper functioning of the court. juvenile courtproceedings were designed to diagnose and treatthe problems of children appearing before thecourt. The proceeding was conceived to be one insti-tuted "on behalf" of the child, rather than againsthim. In this proceeding the State was representedby the judge, who had the dual role of decidingwhether the court had jurisdiction over the childand, if so, of prescribing that disposition whichwould best further the state's interest, as pawnpatri.w. in promoting the child's welfare. Proceed-ings "on behalf of the child" could often be insti-tuted by "any reputable person," but it generallyfell to the probation officer to investigate andactually "prosecute" the petition in court.' Theprobation officer, too, had a dual role: to "representthe interests of the child" before the court, and to"furnish to the court such information and assis-tance as the judge may require." Because theproceedings were conceived to be in the child'sinterest, no conflict was apparent between thesedeifies of representing the child and helping theState ( k ou rt ). The probation officer ( like, occasion-

! fit , . ( ,turf l,l t I sip), §§ 1 an,1

In In.tny .urt%. h.' ei.er. polite 01 Iseult. tr.. m.h.) are nett

Lntycr.. crt,.rm the pr.).et iun tunttn1.

9

ally, the judge), was not legally trained. Nor, asa general rule, did legal counsel represent the child.

Not only was there no need in such a system fora "state's attorney," but the introduction of such afigure would have been seers as highly inconsistantwith the philosophy of juvenile court. The partici-pation of a S!-ate prosecutor would have impliedthe existence of some particular state interest whichrequired advocacy, an interest distinct by definitionfrom those of both the child and the judge (court).But such a conception was considered contrary tothe traditionally-prevailing notion that only oneinterestthe child'swas at stake in juvenilecourt proceedings.

The accepted notion that adversariness ( and

therefore lawyer-advocates, whether for the childor the state ) was best kept out of juvenile courtwas responsible for the general absence of juvenilecourt prosecutors from the law, practice and litera-

ture of juvenile courts in the pre-Gault era. Thiswas consistent with other implications of the pre-vailing "social-service" view of the juvenile court,according to which proceedings were to be informaland noncriminal. But these views and practiceswere severely undermined by three decisions --KentV. United States.' In re Gault' and In re Winship'in which for the first time the Supreme Courtconsidered the constitutional validity of juvenilecourt proceedings. Athough in a fourth and mostrecent decisionMcKtirer r. Pennsylvania'

" Ste Feldman, .Spec in hit C dile

1),Inhmegi: PP,,CtLimgc. 59 111. HI 1 et. (19-th.1 ;#1; t :.s. 5 1 1 1966 .

is" U.S. 1 c 196"4 Or U.S. i5S ( 19-0 I .

7 402 U.S. 52M t Pr h .

(1971 ) a changed Court declined to expand the"constitutional domestication" of juvenile courts,and indeed cast some doubt upon the reasoning ofthe three prior decisions, it is dear that the track-tionally-tonceived juvenile court has been changedirrevoc ably.

B. THE POTENTIAL IMPACT OFGAULT ON THE PROSECUTOR'SROLE

Although it has nor been possible to judge theprecise impact of audt upon the role of prosecu-tion in juvenile court, our study indicates that thefollowing propositions are true: There has beena growing recognition, and appropriately so, thatsome legally-trained person must be available torepresent the state in many juvenile court proceed-ings; 2 ) in part. this stems from recognition thatthe assumption of prosecutorial roles by the proba-tion staff or the juvenile court judge creates unde-sirable role conflicts; 3 increasing requirementsfor prosecutors in juvenile courts is reflected intrends in both proposed and recent legislation; and

) there is now a substantial and increasing use ofprofessional prosecutors in juvenile court.

I. Rceognitiou of the etc -Lat for legalll trainedstate re pre .cc ntatit c s. Even before G.ildt wasdec OW. a judge of the New York Family Courtpleaded in an opinion that the absence of a prose-cutor resulted in an imbalance which favoredrespondents over petitioners, and placed an undueburden on the ._'curt to assist the latter:

[Ti he present law results in a paradoxical situa-tion. The criminal courts are increasingly requiredto secure counsel for defendants so that their rightswill be protected in .' :beers bniught by prosecutingIttticers representing the pople. The Family Court.tin the (niter hand. provides counsel for defendantsand no personnel or machinery to assure t1,e hitIC+late representation of taws against minors evenwhen they are charged with acts which would con-stitute a felony it committed by an adult.'

Similar feelings were echoed in 1967 by the Presi-

11.4 'd .01n. N.Y S (n4

';', 'r t I

dent's Commission Task Force on Juvenile Delin-quency and Youth Crime:

A related problem concerns the presence of coun-sel for the State. To the extent that the presence ofcounsel for the child (or the parent; in contestedatljudicatory proceedings is based upon or wouldresult in a closer approximation of the adversarysystem. the presence of counsel on the other sidemay be necessary to achieve the virtues of that sys-tem. Using the public prosecutor may be too greata departure from the spirit of the juvenile court.But experience may show some legal representativeof the public. perhaps the corporation counsel or alawyer front the welfare department, to be desirablein many cases."

Aside from the impact of defense counsel injuvenile delinquency cases, according to the post-audt, "due process" view of the juvenile court, itis no longer possible to conceive of juvenile courtproceedings as involving a single interestthechild's. Until, at least, the ad judicatory stage hasended, the Constitution requires procedures whichrecognize that distinct and possibly conflictinginterests are involved. The State has an interest intaking jurisdiction over appropriate juvenile sub-jects, on two grounds: to protect society fromthreatening conduct and, as tarots pdtri.w. topromote the juvenile's welfare. The child, on theother hand, has an interest in avoiding inappro-priate or unnecessary juvenile court proceedings,stigmatic adjudications, and other consequentdeprivations. This recognition of potential adver-sariness in juvenile court proceedings was expressedin the Court's application of various proceduralprotections drawn from the Constitutional require-ments in criminal proceedings: rights to counselnotice, cross-examination, confrontation, a highstandard of proof, and to the privilege against self-incrimination.

Further, and possibly of even greater importance,many lower court decisions since Gault haveexpanded the Gault rationale by requiring expandedprocedural safeguards for other aspects of the

10

" Preshicne. I,iinmis.iun tin I.4% Enforcement An.1 Administreir in I it jli I,,: irde

.11/./ 1", tit" crirrh. hit I.

juvenile justice process as well, such as in theinvestigative phase and in rehearing and post-hearing proceedings and actions. Legislation in thepost-G.6th era has also frequently expanded suchprocedural requirements. As a result, large blocksof intric ate rules developed originally in the fieldof criminal procedure. and rooted in notions ofadversariness have come to be applied in someform to the conduct of juvenile court proceedingsfrom investigation to parole. For example, in manyjurisdictions, the often essential but extremelycomplicated requirements of the Fourth, Fifth, andSixth Amendments, regarding arrest, search andseizure, stop and frisk, detention, nontestimonialidentifications, and interrogations have been fullyapplied to juvenile delinquency cases.'" Further,the technical requirements for criminal complaints.informations, and indictments are typically nowbeing applied to juvenile complaints or petitions.Finally, adult requirements on standard of proofand quality of evidence are also increasingly beingapplied and more liberal discovery of evidence,being ordered." The implications of these develop-ments fur the prosecution function in juvenile courthave beet: substantial, and will be even more sub-stantial in the future.

Aggressive defense of the child's interest inavoiding adjudication is now taking such "techni-cal" forms as suppression of illegally seized evi-dence or defectiv, witness identifications, demandsfor probable cause hearings, and objections to thesufficiency of proof. Without any legally trainedprosecutor available in the juvenile court to pre-sent the State's response to such objections, theState's interest may not be represented adequately,unless the judge compensates by acting as prose-utor. When the latter occurs, as it has in many

instances, other problems arise.2. Impact of Pin prosecutor upon probation

officer and judicial roles. Commentators havepointed out that because of the absence of prose-cutors the juvenile court judge is "forced" to assume

1" ize rat': 7/. Ian 4 fra ('net, in a -N../a-./../1

/ha

11

prosecutorial functions which may conflict with thejudge's fact-finding role of impartiality and neutral-ity. Thus, an Ohio juvenile court judge notedwith reference to cases in which defense counselparticipates:

In such contentious hearings the Judge is in animpossible role and reluctant as some of us are toabandon our traditional hearing practices it is

becoming increasingly evident that this is necessaryin many cases and we will be required to call uponthe prosecutor for assistance in more cases than wehave in the past.'''

The mixing of prosecutorial with judicial roleshas given rise to several court attacks upon thepractice. For example, in Rhode Island, an attackupon the system under which the judge performedthe "prosecutorial" function of screening cases atintake, and then proceeded as judge to hear "acharge which he has approved" resulted ininvalidation of that procedure on grounds of dueprocess." Recent cases in California have estab-lished the invalidity of a procedure whereby thehearing referee was permitted to conduct thepetitioner's case (examining and cross-examiningwitness, entering objections, etc. ), while simultane-ously acting as an "impartial" fact-finder, in whichrole he ruled upon motions and objections madeby himself and by opposing counsel." In otherjurisdictions, attacks on such procedures have notbeen successful," but they may well be in the future

"! Whitlock The In Effra or, Mr (Mite ofthe Pr,., lettng ttorta it Ohio Bar 3..11. 1 t Jan. 8.1%8).Sec. also comment to Rule 21. NCC.D. Model Rult for Jute -ttile t 1910 t: Children's Bureau. Swami, for finendeand Famrli Courtr 419(04 at Cidri) let kat ',ReCowl Protrimgrel Tout trimithe Plaice Pcripectite. 8J.Fam.I.. 21 t 1968 ).

"Matter of Rev. Rd. Fam. Ct., (decided April 1.1. 19'0).in ('rim. L. Rptr. 2152, t May 20, 19"11).

14 R. r. Saperi'.r Owl. App., 9" Cal. Reptr. 158, 19 C al.App. id 894 (19-1 .11. t. Amperior Court. App., 98Cal. Rptr. 604, 21 Cal. App. id 525 ( 19"1:.

1:. See It: re Pottr. VI N.C. App. i8". 188 S.F. 2c1 (Ili (N.C.('t. App. 19'2) (rejecting argument that absence of prosecutorforced judge to Serve as prosecutor since judge acted in fairmanner, and: State r. Ruth. 1 i NC. App. 5i9 186 S.F. 2d595 t N.C. Ct. App., 19"2 upholding active but "lair" ques-tioning of witnesses by judge.

if a judge's action reflect a clear conflict of interest.There has also ken adverse comment upon the

assumption of prosecutorial roles by probation offi-

cers, upon the ground that this conflicts with theirduty to assist the juvenile and his family at various

stages of die proceeding.' In a recent California

case the court rejected an attack on statutorygrounds upon the court's discretion to permit theprobation officer to act as prosecutor. In doing so,the court adopted the view that even as "prosecutor"the probation officer was acting in the "best inter-ests" of the minor."

3. Trtnds in propfls,11 and recite legislation. Areview of juvenile court legislation currently inforce across the nation discloses considerable vari-ation among the jurisdictions on the question ofprosecution. About half of the states' laws stillreiiect the traditional, pre-Gault conception of thejuvenile court by their silence on the subject ofprosecution, although they will assign particularprosecutorial roles, such as preparation of the peti-tion, or presentation of the evidence, to the proba-tion officer or judge." In at least nine jurisdictions,the partic illation of professional prosecutors, atleast in certain kinds of cases.tt' is mandatory.'And in eleven jurisdictions, such participationdepends upon the juvenile court's discretionary

iffl.hco's hure Au. 1,,r Ite,ntle FdrniIl, At +. 11...14: Itttl.ntle-

(..munent t., Rule 2 1 e 1.169

/), v App Rptr. 9 ( :aL App. ;d2ss -th.

,n.. upon .t general review et tusenfle courtst.ttutc. :ft MO.(' itItY 1. 19-2.

ln jke.. t,,r example. the proseeutor's participationIN nun fat.,ry eihere the ,,,mplaint elfArges the juvenile withk,iusstig Avattl. t t, je Intend,. der.' 1),Pne 'tic Relati,411( . Ru:( 5.9 1' d 119 2,

jty . DI., Code Ann.. NIh 2,.411 et And the kid... (.,trntn: JNlcurie (..girt Pro-4,.f.'"!, .1'1-2.. III. Ann. Stat.. .h. i (4 "01-21 (1'12

t,,r fn:, rale C.,nrt Prweedinef. Rule." '; ti M tAs Ann PIN 1; m 21. -2 i, &II . ..le Ann. supp. 19-'2.; Tex. Civ.

star, Ann , lit I '., Art 2 A 1. yle Vernon'. 19-11: Vt.gran Ann lit ;;, # 645 et eq' Stipp. 19- 2 I; W1,611. Stars.Anti N 1 t 1 li,12 F

12

request or consent.' In some states, authority forprofessional prosecution is found not in statutes,but in court rules,' or in the "inherent power" ofjuvenile court judges to procure needed assistance.'

Statutes which do provide for mandatory or dis-cretionary participation by prosecutors in juvenilecourt proceedings typically offer few details on thenature or scope of such participation. While astatute may restrict the categories of cases in whichthe judge is authorized to. request prosecutorialparticipation (e.g., to delinquency cases, to con-tested cases, to cases where the juvenile is repre-sented by counsel, etc.), no criteria for guiding thecourt's discretion, such as the complexity of thecase, for example, are given."

There is recent evidence, however, based uponnewly enacted and proposed rules and statutes, thatthere may be a decided trend in the direction ofincreased utilization of prosecutors in juvenilecourt. At the same time, it is clear there is littleagreement on the precise nature and definition of

his role.The major legislative models which have been

proposed from time to time over the past decadeshow significant movement toward a system incor-porating a professional representative of the state'sinterest. Thus, while the 1959 Standard harnile

21 In At !CAS( c r.e ittrisdictiem. Arkansas, the chief probationothier is Also empowered to request prosecution by the prose-tutor. Ark. Scats. Ann.. Tit. 45, i3 45-217 (19(S ). In fourjurisdictions, the county or prosecuting attorney is merely

listed as one of the -persons" entitled to tile, or authorize thetiling of. petitions. Idaho Code Ann., 1416-1M0- (Stipp. 19-1 t:Iowa Code Ann., 14 2i2.; t 1%9): Neb. Rev. Stats., N 1 i--205

r 196m ); N.11. Rev. Stars. Ann.. § 169.3 I 196 i t. For otherstates with disc-retie ttlAry use of pnlitessional pnbsecuteirc.

n. 2 i, int rd.This is true in New Jersey--see n. 19, supra. In Minne-

sota, although the statute provides for the prosecutor's participa-

tive at the court's discretion. Minn. Seats. Ann.** 21,0-155( ).

the court rules make his pafticipation mandatory. Ruhcrin.g. furetrie r..utirt rof...edit:v. it, .1finnewid

hitevile Cuurtf. Rule 5 -2 (19-3).^:' .See In re Lett i.. 1() P. 2d 90- (Sup. Ct. %Vashington.

195" t.1.5'..e. Calif. rlf. & Inst. Code, N 681 (19'21: C010.

Rev. Scats., 1322 19(1-1); Kans. Rats. Ann., N ;lac-815(e/( Supp. 19-2 ); N.Y. Vim. Ct. Act.. § 25.1 ( McKinney'` Conseil.

Laws. Bk. 29A, Part 1, Supp. 19-2); Okla. SLIM Ann.. 44

10 1109 ( c ) Supp. ; S. DA. Laws. It 26 5 -22. '

19-2o.

Court Act made no mention of a prosecutor; theChildren's Bureau Standards for jurenile andFamily Crmrti. promulgated in 1966, recommendgiving the court discretion to use an attorney forthe state in order to avoid the adoption of conflict-ing roles for the jutk The Unti,.rm juttvileCourt Act of 196S also provides for a prosecutingattorney's participation at the adjudicatory stage atthe court's discretion,' and so do the 1969N.C.C.D. Model Rules for Juvenile Courts, in"complex cases." In all three model laws citedabove, the prosecutor's participation: a) is Jiscre-tionary with the court, and b) apparently com-mences only at the trial stage. By contrast, the 1969Children's Bureau Legislative Guide for DraftingFamily and Juvenile Court Acts prescribes a prose-

cuting attorney whose role is mandatory, and whose

participation in the process begins at court intake!'Although the probation officer conducts the "firstlevel" screening of complaints and recommendsto the prosecutor that petitions be filed or not filed,the latter has final, unreviewable discretion on thematter. All petitions must be prepared and counter-signed by the prosecutor, who may take intoaccount both the legal sufficiency and the desirabil-

ity of such action. The prosecutor is required torepresent the petitioner "in all proceedings wherethe petition alleges delinquency, neglect or in needof supervision,'" implying his appearance at allpre- and post-trial hearings. He is given the powerto make motions for transfer of cases to criminalcourt,' as well as motions for medical examina-tions," for continuances," and to amend the peti-

2:" NUJ.). Sivv.i.o../ jut entle Court Act (1959).1.1. at

"27 Natilalai COMMISi.ift On Uniform State Laws. Uniformlattetitle (2,,urt .la.14 21(6) (1968).

Model Ruler for Jut entle ( :ourtt. Rule 21 1 1969)."( hildren's Bureau, Uh/wire Guide for Drafting Family!wend,. court Actf. 00 13 and 1.1 I 1969 ).

3"1J . at 0 c ).

1 1.1.. at § it.

ii. at #q 31) and .10.331d.. at #

13

tion." He may also move for the entry of consentdecrees, and for the reinstatement of a petition ifsuch a decree is violated:* He also represents thestate at the adjudicatory and dispositional hearings,and upon appeals.

Other recent model legislation, proposed byProfessor Sanford Fox, also envisions a prosecutor

who is fully integrated into the court process fromthe time of intake through disposition."

Recent legislation in such jurisdictions as theDistrict of Columbia, Vermont, Minnesota andWyoming has also provided for a mandatory, active

and fully integrated attorney for the State." Muchof this legislation has been influenced by the above-

described Children's Bureau Legislative Guide, butsome, like the District cf Columbia statute andcourt rules, carry the notion of prosecutorial partici-

pation and control to new lengths. The District ofColumbia's juvenile court rules, which were sub-stantially modeled upon the Federal Rules ofCriminal Procedure, articulate the prosecutor's rolewith great precision and detail. Thus, not only does

the law expressly assign to the prosecutor all theduties and prerogatives outlined in the Children'sBureau Legislative Guide, but in addition, he con-trols or influences such matters as police applica-tions for arrest ( "custody ") warrants,' the court'sdecision whether to proceed by arrest or summons,'

31/ei.. at IS 52.

3?"1(1.. at 14 33.

Roc. Prolectitori in the futenile Court: A Statutort Pro-pod. 8 Harv. 3. Leg. 33, 37 ( PTO).

:t7 fee D.C. Code, Tit. 16 c. 23. ee 16-2301 rt. ce.y.. andD.C. Rules Goterning Itcrettile Proceedings: Vermont Stats.Ann., Tit. 33, NA 615 et. seq. (Supp. 1972) : Minnesota legis-lation and rules cited you. n. 22: and Wyo. Stars. Ann.. ell11-115.12 (Supp. 1972).

34 The juvenile prosecutor in the District of Columbia. whois the Corporation Counsel, must approve police applicationsto the court for arrest warrants (District of Columbia Code11 16-2306 and District of Columbia Superior Court Rules.Rules Goterning Juvenile Proceedings thereinafter cited asD.C. Rules) Rule 4 (19'2).

Millie prosecutor may request arrest ("custody-) instead ofsummons procedure I D.C. Rule 9; 1972).

juvenile detention,' bail hearings," probable causehearings,' and pretrial c on ferencvs," dispositions,"subpoenas " and discovery,'" He expressly controlsinitial decisions to join and sever offenses andoffenders for trial,' and, unlike his counterpartunder the Children's Bureau /.,.,,;isiatitL Guidt.. hehas power to veto adjustment by consent decree."

1. Current utilization of prosecutors in juvenilecourts.The statutory and rules development just describeddoes not begin to reflect the rapidly increasing useof prosecutors in the juvenile courts. In 1964,Daniel Skater and Charles Tenney, reporting theresults of a national survey conducted a year earlier,stated:

Responses indicated that a state's attorney, countyattorney. or local prosecutor appeared regularly inAna of the reporting courts and occasionallyin tic er ; of the reporting courts ..

These percentages began to increase even moreshortly after Gault. For example, in 1968, JudgeW. C. Whitlatch reported that 23 out of 48 Ohiojuvenile courts surveyed used prosecutors in delin-

'" The pr.lses unit gets protnpt notice- id notice and theria.ons thretore t N 16-2 ;11; 19-1) West's Supp.

implmented by D.C. Rule 19 -2 1. Ile appears atdetention hi.arings to represent the interests id the District

co,:e. tz 10-.2;12. 11-0 NX.cst* Stipp. Vol., implementedb., Dr Rule 10-. 19-2 ).

ti 1S} impluatii.n from his role in detention pri weeding+. theprosecutor is similarly involved in hail proteedings. This roletan .11.0 b be interred from the juvenile's right to interlocutor)appeal in these matters ( D.C. Code. § 16-2;2-: 190 West'ssums, Vol .

The pn.set loot must shim probable cause it the WWILim tiles n, .tut.tin the nog:rule t D.C. Code, It 16-23121 v,t : 19-0West's Suns. Vol !, hocceser there is no need to show probablecause it arraignment t D.C. Code. N In-230st; 19-0 West's"urp. V..1.! .

1't)(" Rule 1 -.1 C l'1 -2'.tt DC Rule 15 (19-2i.151).C. Rule 1- I 19-21.ic Rule 161 ) ( 1't"2i.17 Rules s. 1*. and 11 I 19-2) .1, iv i; D.C. Rules 10,10 I 4 19-2). Compare

hilren' Iturtao, n. 29. it 0 ;.Sk, .1t-r and Innv, .Itato Repre-c-Pthiliort IN Jut tittle'

('Wort. 0 1 1 am. I.. s; S 1 ( 1% t i. This survey question-naire %cis sm to Ridges in courts serving the -5 largest citiesof the natifl. .111.1 teiri dIses. apparently. id nearly onehundred per tent.

quency cases where the charges were denied.' In1970, Professor Fox cited a 1969 survey of 53 juris-dictions, in which responses were received from 46.In 36 of the responding jurisdictions, it was indi-cated that an attorney appears on behalf of thestate "in some cases." " In these surveys, it was notoften clear what criteria governed when prosecutorswould appear, but the reasons given in the 1963Skoler and Tenney survey were as follows:

Among judges reporting occasional appearancesby states attorneys or prosecutor personnel, the cir-cumstances or types of cases most frequently citedwere contested matters ( 15 responses), adult casessuch as contributing to delinquency (8 responses),'serious matters (9 responses, including specificidentification of homicide or. capital cases in 3instances), and cases involving possible waiver ortransfer to adult court ( responses ).32

14

C. THE CENTER'S 1972NATIONAL SURVEY

In an effort to obtain both a more current andcomprehensive picture of the state of juvenileprosecution in the United States, as well as theviews of juvenile judges towards the role of juve-nile prosecution, the Boston University Center forCriminal Justice conducted a survey of juvenilecourt judges in the Nation's 100 largest cities dur-ing 1972.

The sample was drawn from the most recentedition of the Juvenile Court Judges Directory."All judges listed as serving in the 100 largest citieswere included in the sample. The 100 cities werederived from the 1970 census figures." The largestcity, New York, had a population of over 7.8 mil-lion and the smallest in the sample, Newport News,Virginia, was listed at 138,000. The Directoryyielded the names of 417 juvenile court judgesserving in those 100 cities.

3" Whitlatth, The Gdult Deeiticin: It( ktfrtt hot the- Mile ofthe Prwri Acting Atteirno. 11 Ohio flat 3. 1, t Jan. 8, 1904

51 Fox, Prme-emPol to the fitteoilt Court: A Siattitur) ProP.411. 8 H.M. J. Leg. 4, 47 t 19-0i.

7'2 Skitter' and Tenney, iupr.i note 9, at 8 4.5 National Council iif Juvenile Court Judges, futon& Court

Dtreaory ( 19-2--3'1 The World Altn.m t t 19-2 edition t.

The initial sample to whom the survey was sentconsisted of 117 judges. A portion of these clues-

' tionnaires ( 50 or 12r; of the mailing) werereturned undelivered or could not be completed bythe addressee judge ( some judges indicated thatthey no longer sit in juvenile proceedings, someonly occasionally heard juvenile cases, and severalwere deceased ) thereby resulting in an adjustedsample of 367 juvenile court judges.

The survey was conducted through the use ofa Ave-page questionnaire organized to facilitateelectronic data prmessing of the responses. Thequestionnaire requested basic demographic infor-mation about the court, information about thenature of prosecution and the use of lawyer-prose-cutors, and the judges' views of the lawyer-prosecutor's role and the adversary quality of juve-nile court proceedings.'

Responses were received from 137 judges or37.3(7, of the revised sample, representing 68 ofthe original 100 cities ( 6W1 Two sampleswere drawn from the respondents for purposes ofanalysis. Attitudinal data were analyzed andreported for all 137 respondents. Data concerningthe present state of juvenile court prosecution wereanalyzed in terms of the 68 cities covered in thereturns. Where multiple responses were receivedfor a city, a single, averaged response was developedfor analysis. These two samples (of 137 and 68respectively ) are reflected in the tables and analysesthat follow.

In the 1963 survey of juvenile courts in the 75largest cities in the United States conducted byDaniel Skoler and Charles Tenney, which wasdescribed earlier, the authors concluded that "First,and perhaps most significant, the attorney remainsa stranger to the juvenile court. "''' Their surveyrevealed that while judicial attitudes towardattorney involvement in juvenile court proceedingshad become far more positive than in previousyears,' large urban courts continued to reflect

" A, wpy t.t the questionnaire is included in Appendix A.511 "VC Appendix A tor a list of cities included in the survey." Skoler and Tenney, .upta note i9, at %.7.`f.1.. at ..04-s9.

15

. t

traditional practices with lawyers playing a mini-mal role.

The present survey was conducted with theintention of obtaining data in the following areas:1) the amount of defense counsel involvement injuvenile prcxeedings; 2) the nature and scope ofattorney repesentation for the state in juvenile pro-ceedings; 3) the division of court functions andthe prosecutor's role; and 1) the views of juvenilecourt judges concerning the expanded use of lawyer-prosecutors in juvenile courts.

I. Defense connsd inroirement in furenileproceedings. As recently as 1963. 89% of big-cityjuvenile courts reported that juveniles were repre-sented by counsel in fewer than 25% of all delin-quency proceedings. In almost 60% of these courts,juveniles were represented in less than 5% ofdelinquency cases. Of equal interest was the findingthat in only 4% of these urban courts were juve-niles represented in more than 5 (,7. of delinquencycases.

MI

A similar survey, conducted in 1966 in coopera-tion with the President's Commission on LawEnforcement and Administration of Justice, pro-vided a picture of juvenile court defense counselparticipation which was virtually unchanged."Taken together these two surveys suggested thatnor only was the frequency of defense counselinvolvement dismally low in most big-city courtsin the years immediately prior to the Guth deci-sion, but that this condition was uniform through-out our major cities and was not improving.

The information submitted in response to oursurvey reveals, however, that in the years sinceGault, there has been a marked increase in the fre-quency of juvenile defense counsel representation.

judges were asked to estimate the frequency withwhich juveniles in their courts are currently repre-sented by counsel. They were requested to makeseparate estimates for neglect and dependencycases, cases involving misconduct of a non-criminal

39 id. at 81..2" Presidents Commission on Law Enforcement anti Admin.

istration of Justice. Talk Furce Rcluirt: Arendt' !Whim nt.1and 1",,ath Crime (196' r Appendix 11, Table 16, at 82.

TABLE 1.-Percent of Cases in Which Juvenile is Represented by Attorney at Adjudication (68 Cities)

Case type

Neglect anddependency

Noncriminal(PINS)

Uelinquency(felony)

Delinquency(nonfelony)

Under 25None percent

NUM. Per. Num. Per.bet cent bet cent

O (0.0) 25 (36.8)

O (0.0) 25 (36.8)

Cs (0.0) 3 (4.4)

O (0.0) 15 (22.1)

25 percent-50 percent

Num. Per-bet cent

9 (13.2)

7 (10.3)

16 (23.5)

16 (23.5)

50 percent- Over 75 100 Number75 percent percent percent response Total

Num- Per. Num. Per Num- Per Num. Per Num. Per-bet cent bet cent bet cent ber cent bee. cent

3 (4.4) 25 (36.8) 5 (7.4) 1 (1.5) 68 (100.0)

3 (4.4) 26 (38.2) 7 (10.3) 0 (0.0) 68 (100.0)

7 (10.3) 34 (50.0) 8 (11.8) 0 (0.0) 68 (100.0)

5 (7.4) 25 (36.8) 7 (10.3) 0 (0.0) 68 (100.0)

nature ( PINS cases ), delinquency based upon afelony or serious crime. In sharp contrast to thepre-Gault data, our survey reveals that counselrepresentation of juveniles has increased dramati-cally. Before Gault only 4%. of our major citiesindicated that more than 50% of juveniles wererepresented in delinquency cases. The results of oursurvey reflect that in 61.8% of the respondingcities, more than 75 el of juveniles in delinquencycases based upon a felony or serious crime arerepresented by counsel and that in 47.1% of thesecities, over 75%- of juveniles are represented bycounsel in delinquency cases based upon non-felonies or less serious crimes. In PINS and neglectcases, 48.5% and 44.2% of responding cities,respectively, report representation at a rate greaterthan 75 % ( Table I ) . Of these categories, thegreatest representation occurs, not surprisingly, inserious delinquency matters.

It should be noted, however, that full representa-tion of juveniles is still not a reality in many ofour large cities. More than one-third of the citiesreport that fewer than 25% of juveniles in neglectand PINS cases are represented. Even in delin-quency cases, the rate of attorney representation inmany cities is very low. In 27.9% of the cities, lessthan half the juveniles are represented in seriousdelinquency cases. In 45.6% of the cities, less thanhalf of the juveniles are represented in less seriousdel inquent

Nevertheless, in spite of serious inadequacies

16

which continue to exist in many courts, attorneysare clearly playing a far more prominent role injuvenile proceedings than they did just a few yearsago." As subsequent data reveal, this expansion ofdefense counsel presence has had a significanteffect on the growth of attorney representation forthe state.

2. Seope and nature of attorney-prosecution. The1963 survey by Skoler and Tenney showed thatthe state was represented by an attorney-prosecutoron a regular basis in only about 15 % of theNation's metropolitan courts," The 1967 TaskForce Report concluded that prosecutors do notappear in most juvenile courts."

Our data indicate that in most large city juvenilecourts, lawyer-prosecutors are now regularly util-ized. Of 68 responding cities, 64 (94.1% ) repliedthat a lawyer as prosecutor or state's representativemakes regular appearances in juvenile court. Ofthe responding cities, 19 (27.90 stated that theuse of lawyer-prosecutors began prior to 1960, 16( 23.5 471 ) stated that lawyer-prosecutors wereintroduced between 1960 and 1967, and 29(42.6 %) indicated that the regular use of lawyer-

gt A recent nationwide survey identified almost 350 legalserskes offices and private attorneys who have substantial juve-nile law practices or are engaged in juvenile law test caselitigation. juvenile Justice Standards Pnsiect. Institute of Judi-OA Administration, New York University School of I.aw,Jut rude Lau. Lark:Mos Mree.tory (October, 19-2 I .

6'2 gofer and Tenney. lutra now -19. at 143." T.1.1 F6rc r Re part ut e Pale De !burnt net Jul/ 1%."thOrme. impra note (VU. at 5.

TABLE 2.-Years During Which Regular Use of Attorney-Prosecutor Began (68 Cities)

Years Number Percent

Before 19601969-19671967 1972No attorney prosecutorTotal

19 (27.9)16 (23.5)29 (42.6)

4 (5.9)68 (99.9)

prosecutors did not begin until after the SupremeCourt decision in alai' ( Table 2.)

Although six cities ( 8.8(.7 ) draw their juvenilecourt prosecutors from the staffs of the city solicitoror corporation counsel and thirteen cities ( )

utilize a special juvenile court prosecutor, the vastmajority of cities (i i or ) employ the ser-vices of prosecutors from the office of local districtor county attorneys ( Table 3).

TABLE 3.-Type of AttornerPrasecutor Used (68 Cities)- .

Type Number

District or county attorneyCorporation counselSpecial Juvenile Court prosecutorCity solicitorLaw studentNo attorney-prosecutorTotal

Percent

44 (64.7)3 (4.4)

13 (19.1)3 (4.4)1 (1.5)4 (5.9)

68 (100.0)

The foregoing data reveal a continuing move-ment during the past decade toward the reguhruse of legally trained prosecutors in juvenile courtand that, spurred perhaps by developments sinceGallit. this process is nearly complete insofar asour large metropolitan courts are concerned. Ofcourse, these data, alone, do not suggest the 1,xttntto which lawyer-prosecutors are involved in juve-nile proceedings in the various cities. For example,in approximately one-third of the cities, appearancesby lawyer-prosecutors are not automatic but ratherupon the court's request ( Table ). The use ofprosecutors in this group of cities, although charac-terized as "regular," may be relatively infrequent.Even when prosecutors "automatically" appear forthe State, their involvement may well be limited toparticular categories of proceedings and their rolemay well be circumscribed. However, the fact that

17

TABLE 4.-Appearances of Attorney-Prosecutor (68 Cities)

Appears Number Percent

Automatically 44 (64.7)At court's request 19 (27.9)At discretion of prosecutor 1 (1.5)No attorney-prosecutor 4 (5.9)Total 68 (100.0)

almost 95 (*. of these courts regularly use prose-cutors in some capacity represents an importantshift in juvenile court practices.

Judges from jurisdictions where prosecutors donot automatically appear in juvenile court proceed-ings stated their criteria for requesting his partici-pation. As shown in Table 5, the judges responsestended to fall into three somewhat related cate-gories. Most often cited are cases which are of anadversary nature-that is, those which are con-tested and/or where the juvenile is represented bycounsel ( ). Cases which involve seriousmisconduct and include the possibility of severecourt action are mentioned next ( 3().()q ). Finally,cases involving complex issues of fact or law areseen as warranting the presence of a professionalprosecutor ( 17.1 (. 7 ).

Judges were asked to estimate the percentage ofcases where the state is represented at th adjudica-tion hearing by a lawyer-prosecutor. As for defensecounsel participation, judges were asked to makeseparate estimates for each of four major categoriesof cases. The results are contained in Table 6.

In delinquency matters based on felonies orserious crimes, 57.3% of the cities reported thatattorney-prosecutors appear for the state in morethan 750.7 of adjudication hearings. For less serious

TABLE 5.-Criteria for Appearance (20 Cities. 39 Judges)a

Criteria Number Percent. .

Serious offense 19 (27.1)Contested cases 13 (18.6)Juvenile is represented 13 (18.6)Complex issues 12 (17.1)At prosecutor's request 11 (15.7)Commitment possibility 2 (2.9)Total 70 b (100.0)

Responses are reported from 39 budges in 20 iurisdietionswhere prosecutor does not automatically appear.

Multiple criteria were indicated by some budges-

TABLE 6.--Percent of Cases in Which State is itepneented by Attomerftosecutor at Adjudication (68 Cities)

Case type

UnderNone 25 percent

Num- Per- Num- Per-ber cent ber cent

50 percent25 percent-

Num- Per-ber cent

50 percent.-75 percent

Over75

Num-ber

percent100

percentNo

Response Total

Num- Per-ber cent

Per. Num. Percent ber cent

Num- Per- Num.ber cent ber

Per-cent

Neglect anddependency 5 (74) 24 (35.3) 5 (7.4) 1 (1.5) 29 (42.6) 3 (4.4) 1 (1.5) 68 (100.0)

Non-criminal(PINS) 5 (7.4) 36 (52.9) 4 (5.9) 2 (2.9) 18 (26.5) 3 (4.4) 0 (0.0) 68 (100.0)

Delinquency(felony) 4 (5.9) 13 (19.1) 7 (10.3) 5 (7.4) 36 (52.9) 3 (4.4) 0 (0.0) 68 (100.0)

Delinquencyrnon-felony) 4 (5.9) 21 (30.9) 12 (17.6) 3 (4.4) 25 (36.8) 3 (4.4) 0 (0.0) 68 (100.0)

delinquencies ( non-felonies), only 1.2% of thecities report prosecutorial participation at a fre-quency greater than 75 ri . In PINS cases and thoseinvolving neglect and dependency, attorney-prose-cutors appear in more than 75r; of cases heardin 30.9t7; and ,t7r; , respectively, of the 68responding cities.

It should further be noted that with the excep-tion of serious delinquencies, almost as many ormore cities utilize prosecution in less than 25% oftheir cases as those who utilize it in more than75r; . Percentages of cities in which attorney-prose-cutors appear in less than 25 of juvenile casesare as follows: serious delinquencies: 25.0 ; lessserious delinquencies: 36.8 r; ; PINS cases: 60.3 cl ;and neglect and dependency: -14.2'7; .

Comparing the data for defense counsel andprosecutorial participation, several conclusionsemerge. First, attorney participation in urban juve-nile courts, as both defense counsel and prosecutor,occurs most frequently in serious delinquencies,declines in less serious delinquencies, and is leastprominent in PINS and neglect-the latter casesbeing least "adversary' in traditional juvenile lawthinking. Second, in almost all case categories,more courts report a higher frequency of attorneyrepresentation of the juvenile than attorney repre-sentation of the State.." Similarly, fewer courts

"e Chi ooh in the act44,ry of neglect caw% %hemapt teriet -1(10'; repmentakm of

tuvernit but 1 ' ri..port '5': lifor; st.prntation of the

report less than 25% involvement of defensecounsel than they do for prosecution. So, althoughlevels of defense and prosecution involvementshow similar variations according to case categories,overall, attorney representation of juveniles appearsto exceed that of attorney representation of theState.

3. The division of court functions and theprosecutor's role. One section of the questionnairemailed to juvenile court judges dealt with specifictasks within the court (i.e.. who reviews a petitionfor legal sufficiency, or who represents the state atdetention hearings). The purpose of these ques-tions was to help define the functions currentlyassumed by the lawyer-prosecutor. In addition todefining the "state of the art" at present, the dataresulting from these questions are useful in sug-gesting possible alterations and expansion in theattorney-prosecutor's role.

The full set of tables (I -23) is presented inAppendix B. In the following section, the discus-sion will be confined to those questions whichbear most heavily upon the prosecutor's role.

a. The initial detention decision (Appendix 13,

Tables 2. 3). The lawyer-prosecutor plays a verylimited role, at present, in the detention decision.In none of the responding jurisdictions does theprosecutor review the detention decision. Thatreview is carried out primarily by the judge( 57.4% ), the probation officer (23.5% ), or is

18

shared between the d o t 10. it% ) .6'. Wrhen deten-

tion hearings are N.M. tb prosecutor representsthe state in less than half of the hearings. In one-third of all jurisclicticitm respondents indicated thatno one" represented the state at detention hearings.

b. Pre tar.1t1',P1 .1r1,1 re It ti fit ti,tApp. Ptelt.v B. 7"dhit, s S. (a Thy Liu yer-rmst utor

also Currently plays . small role in the preparationof petitions in the cities respondi:,g to the survey.In only 15 of the 6S lurisdit tions ( 22.1'; ) is this

part of his responsibility. More frequently, thecourt clerk ( or the probation officer

33.sr; ) performs this task.Ti c prosecutor's expertise in the preparation of

suffic lent petitions could he utilized at oneof tut) stages. Either he could draft the petitionitself. or he c ould review it at a later stage. Approxi-mately ime- third of the jurisdictions ( 36.Sr; )specify that the 1.o. t L-r-prosec utor reviews petitions

for legal sutiaclent v o slightly higher when juris-dictions using nciti-attorney prosecutors. or dividingthis task between prosecutor and probation officerare included ). A large number of jurisdictionseither failed to answer the question (8.8r; / orindicated that no one" reviews petitions ( 10.3r;In many jurisdictions. the review is carried out bythe judge ( 16.2r; , the probation officer (I 1.8r; ,or the clerk ( 10.3 (7 ). This suggests that fre-quently the person drafting the petition. i.t .. theclerk or probation officer, is also charged withexamining it for legal sufficiency. A situation mayexist in uhich these people have the legal expertiseto make set li ata evaluation, but it is not an exper-tise normally required in those roles.

L. Pri.trial rovitiwti. prObabitt A/U.1c btaring.r

twn ft Pit dcert,f c !I pp thlix 13. T'ul'les S. 9. /40. Asmight be expected, the lawyer-prosecutor plays animportant role in the area of pre-trial motions,probable cause hearings, and consent decrees. In-6.5 r; of the surveyed cities, attorney-prosecutorsargue motions and, in "3.5(1 and 12.61.1 Of thecities. they also represent the state at probable cause

I hc itm -.1"tt tti tbs.. ft, In IA III t,tit h Hr. in rt.tin,.r the -f ,enpln 1,%ri-.11. II 4.t The

re.qsmt... the re,,t,:tr t, metre 1 t.. Apptmitz 14

19

hearings and in the arrangement of consent decrees.In each of these areas, however, a substantial

number of jurisdictions either failed to respond tothe question or indicated that "no one" performedthe function. Approximately 1 ifs; of the jurisdic-tions queried about motions and Or; of thosequeried about !voluble cause hearings indicated"no one", or more frequently, made no response.It may he assumed, therefore, that in at least someof these jurisdictions, pre-trial motions and prob-able cause hearings occur seldom or not at all.Indeed, the high percentage of jurisdictions indicat-ing representation of the state at motions and prob-able cause hearings by lawyer-prosecutors is noevidence of the frequency with which those actuallyoccur. Empirical study of the Boston juvenile Courtrevealed that few pre-trial motions were Mack dur-ing 1971.

In the area of consent decrees, almost one-halfof the sample ( i 1.2r. ) failed to respond to thequestion or indicated that "no one" represented thepetitioner in such actions. It may be that consentdecrees, or negotiated settlements, are not yet com-monly employed.

d. Adjudication ;Ohl divfflitifi (Apphlix B.Tablus 17. IS. 2. Questions concerning theadjudicator). and disposition stages of juvenile pro.ceedings revealed a diminishing involvement onthe part of the prosecutor as the case develops. Aswe have seen above, in the vast majority of cities

surveyed, a lawyer-prosecutor represents the peti-tioner at the adjudicamry hearing. The lawyer-prosecutor's presence at the disposition stage de-creases markedly ( in .18.5r; of the cities he repre-sents the petitioner and in another 13.2(; heshares this function with the probation officer ). Infact, in almost one-fifth of the jurisdictions( 19.1 ri ) no one represents the petitioner at thedisposition stage. The lawyer-prosecutor's role

diminishes even further when it comes to recom-mending dispositions to the judge. In a small num-ber of jurisdictions ( KW"; ), the prosecutor, alone,recommends disposition. In another one-quarter,the prosecutor and probation officer share the func-tion; however, in the vast majority of jurisdictions

TABLE 7.--Should Attorney-Prosecutors Play a More Eaten.sive Rote In Your Court Than They Do Nowt (137 Judges)

F- tetponse

MoreLessSameNo responseTotal

Number Percent

462

872

131

(33.5)(1.5)

(63.5)(1.5)

(100.0)

( 60.3(7 ) , it is the probation officer alone whorecommends dispositions to the judge.

1. The titles ref efovrt :pokes Lou .irisan expanded r6.'e for prostaitor. Juvenile courtjudges were asked two attitudinal questions.Responses to the first of these ( "In your opinion,should lawyer-prosecutors play a more extensiverole than they presently do in your courts ") arereported in Table 7.

As indicated, almost- two-thirds of the judges weresatisfied with the extent of lawyer-prosecution intheir courts while the remaining one-third expresseda preference for more extensive participation. Onlytwo judges in the entire sample felt that the roleof professional prosecution should be reduced.

The judges responses were further examinedaccording to the existing amount of professionalprosecution in their various cities and in terms ofthe current balance between defense counsel parti-cipation and lawyer-prosecutoi participation. Theseanalyses were Performed in order to determinewhether judges attitudes concerning the need forgreater prosecutorial participation in their courtsare associated with current levels of prosecutorial

Response

participation, as an independent factor, and/or bythe current amount of professional prosecutionviewed in relation to existing levels of defenseattorney participation. In other words, are judgesinclined to view the expanded use of attorney-prose( utors in juvenile court proceedings in termsof a unilateral need or in terms of the establishmentor maintenance of adversary balance.

The 68 survey cities were divided in two groupsaccording to whether attorney-prosecutors appearfor the state in less or more than one-half of thosecases heard. As repotted in Table 8, in 33 cities,attorney-prosecutors participate in fewer than 50(7of cases for which an adjudication hearing is held,while in 35 cities the frequency of participationexceeds 50%.

As shown in Table 8, the amount of professionalprosecutorial involvement in the various citiesappears to have little or no bearing on judges'views concerning the expansion of the attorney-prosecutor's role. Judges who serve in cities havinga "low" frequency of attorney representation of thestate ( less than 50(7 of cases heard) are no morelikely to favor a more extensive role for theattorney-prosecutor than judges in cities with a"high" level of prosecutorial participation. In fact,the existing level of prosecution in the variouscities, by itself, appears to have little bearing onwhether judges in those cities favor a change in therole of prosecution in their courts (Table 8).

Cities were also divided in terms of the relation-ship between the frequency of defense counsel

TABLE 8.-Shoutd Attorney-Prosecutor Play a More Extensive Role? (137 Judges)

Judges in courts where prosecutorappears in 50 percent or more of allcases heard (33. or 48.5 percent,

of 68 cities) a

Judges in courts where prosecutorappears in less than 50 percent of all

cases heard (35. or 51.5 percent.of 68 cities) a

Total

Number Percent Number Percent Number Percent

More 27 (32.5) 19 (35.2) (33.5)Less 1 (1.2) 1 (1.9) 2 (1.5)Same 54 (65.1) 33 (61.0) 87 (63.5)No response 1 (1.2) 1 (1.5) 2 (1.5)Total 83 (100.0) 54 (100.0) 137 (100.0)

Based upon estimates provided by 137 iuventle court judges on delinquency (non felony). RMS. and neglect/dependency. Case68 cities of frequency cif appearance by attorneyprosecutors in categories were accorded equal value and averaged for each city.four case categories serious delinquency (felony), less serious

20

Response

MoreLessSameNo responseTotal

TABLE 9.-Should Attorney-Prosecutor Play a More Extensive Role? (137 Judges)

Judges In courts withbalanced defense and

prosecutton (31 or 45.6of 68 cities) a

Judges In courts wtthgreater participation by

prosecutor than bydefense (12. or 17.6

percent. of 68 cities) a

Judges in courts withgreater participation by

defense than byprosecutor (25. or 36.8percent. of 68 cities) a

Number Percent Number Percent Number

16 (22.5) 8 (42.1) 221 (1.4) 0 (0.0) 1

53 '74.7) 11 (57.9) 231 (1.4) 0 (0.0) 1

71 (100.0) 19 (100.0) 47

Based upon estimates provided by 111 juvenile court judges in68 c.ttrs of frequency of appearance by attorneytesecutors anddefense attorneys in four case categories: serious delinquencytfetonyl. tess serious delinquency anon felony,. PLAYS. and neglect/dependency. Case categories were accorded equal value and aver.

appearances at adjudication and that of a profes-sional prosecutor. Cities in which both defensecounsel and professional prosecutors appeared inthe same frequency categories ( e.g.. under 25(7.25 (.7 -50r; 50%-75% and over 7517 ) are, forthe purposes of this analysis, characwrized as hav-ing adversary balance.

As reported in Table 9, 31 ( 45.6% ) of the 68survey cities reveal a general balance between thefrequency of attorney representation of the childand the state at adjudication hearings. Twelvecities ( 17.6/7 ) show an imbalance in participationin favor of the prosecution, white in 25 cities( 36.8r; ) attorney representation of the juvenileexcec.ds that of the state.

Whereas judges' attitudes toward extending therule of prosecution were not materially affected bythe current amount of professional prosecution intheir courts, alone. Table 9 shows substantial dif-ferences in judges' responses based upon whether ornot then ; a balance in the participation levelsof prosecution and defense. Judges whose courtsexhibited balanced participation by defense andprosecution were content to maintain present levelsof prosecution regardless of the proportion of casesin which prosecution participated in their courts.Only 22.5r; of judges in balanced systemsindicated a preference for increased prosecution.whereas .12.1r; and 6.8'7 of judges in courtsbalanced in favor of prosecution and defense,

21

Total

Percent Number Percent

(46.81 46

(2.i) 2(48.9) 87

(2.1) 2(99.9) 137

(33.5)(1.5)

(63.5)(i.5)

(100.0)

aged for attorney-prosecutors and defense counset in each city.Where the average frequency of appearance for both prosecutorsand defense Counsel in a particular city felt within the samequadrant ?for esample. 0% to 25% or SO% to ?SU that city'sjuvenile courts were regarded as "patented."

respectively, favored greater prosecutorial partici-pation.

These data suggest that judges were far morelikely to view the role of prosecution in relationto the amount of existing defense counsel partici-pation than they are to view the broadened partici-pation of professional prosecution as a worthwhileend in itself.

The second attitudinal question read as follows:"Are you in favor of having lawyer-prosecutorsrepresent the state in all juvenile cases?" A majorityof the judges (55.5% ) felt that lawyer-prosecutorsshorrid represent the state in all juvenile cases( Table 10?.

Those who dissented from that view (43.1% )most frequently cited minor offenses, admittedoffenses, truancy, dependency, incorrigibility, andtraffic offenses as case types not requiring the ser-vices of a lawyer-prosecutor.

A strong relationship appears to be presentbetween the existing degree of professional prose-cutorial participation in the juvenile court caseload

TABLE 10.-Should Attorney-Prosecutor Represent theState In ALL Juvenile Cases? (137 Judges)

Response

YesNoNo responseTotal

-

Number Percent

76 (55.5)59 (43.1)2 (1.4)

137 (100.0)

Response

TABLE 11.-Should Attorney-Prosecutor Represent the State In ALL Juvenile Cases? (137 Judges)

Judges in courts where prosecutorappears in 50 percent or more of

all cases heard (33. or 48.5percent. of 68 cities) a

Judges in courts where prosecutorappears in less than 50 percent of

all eases heard (35. or 51.5percent. of 68 cities)

Total

__

Number Percent Number Percent Number Percent

Yes 66 (79.5) I0 (18.5) 76 (55.5)No 16 (19.3) 43 (79.6) 59 (43.1)No response 1 (1.2) 1 (1.9) 2 (1.4)Total 83 (100.0) 54 (100.0) 137 (100.0)

(lased upon estimates provided by 137 juvenile court judges rn68 cities of frequency of appearance by attorneyprosecutors infour case categories: serious delinquency tfetony). less serious

of a city and the views of juvenile court judges inthose cities regarding the desirability of havingattorney representation of the state in all juvenilecases. Judges in jurisdictions where prosecution isvery active approve its use in all cases at a rate of79.5(.7 . On the other hand, only NJ% of judgesin jurisdictions which have relatively inactive pro-secution ( less than 5(r i of the court's caseload )favor the use of professional prosecutors in all cases( Table I ).

It would appear. therefore, that where prosecu-tors already participate heavily in a jurisdiction'sjuvenile caseload, there is substantial supportamong judges for the most inclusive role for pro-fessional prosecution. Resistance to a broadly inclu-sive role for professional prosecution is most appar-ent in jurisdictions which, presumably, have theleast experience with professional prosecution intheir juvenile courts

Response

delinquency felOalr). PINS, and neglect/dependency. Casecategories were accorded equal value and averaged for each city.

Support for broad participation by prosecutorsis also found among judges whose jurisdictionsdisplay a relative balance between defense andprosecution. Of these judges, more than two-thirds( ) approve the use of an attorney-prosecutorin all cases which are heard in their courts. Judgesfrom jurisdictions which do not now have a bal-anced adversary system tend to be more resistantto the notion of extending professional prosecutinnto all cases which are heard ( Table 12 ).

The data elicited from judges in response to thetwo previous questions (Should attorney-prosecu-tors play a more extensive role in your court thanthey do now?; Should attorney-prosecutors repre-sent the state in all juvenile cases?) show differ-ences requiring some additional analysis. For exam-ple, whereas only about one-third of the samplefavored extending the role of prosecution, morethan one-half approved the use of attorney-prose-

TABLE 12.-Should AttorneyPros wtor Represent the State in ALL Juvenile Cases? (137 Judges)

YesNoNo responseTotal

Judges in courts witsbalanced defense ana

prosecution (31, or 45.6percent. of 68 cities) a

Number

4822

1

71

Percent

(67.6)(31.0)

(1.4)(100.0)

Judges in courts withgreater participation by

prosecutors than bydefense (12 or 17.6

percent, of 68 cities) a

Judges in courts withgreater participation by

defense than byprosecutors (25. or 36.8percent, of 68 cities) a

Total

.

Number Percent Number Percent Number Percent

9 (47.4) 19 (40.4) 76 (55.5)10 (52.6) 27 (57.4) 59 (43.1)0 (0.0) 1 (2.2) 2 (1.4)

19 (100.0) 47 (100.0) 137 (100.0)

Based upon estimates provided by 137 juvenile court judges in68 cities of frequency of appearance by attorneyprosecutors anddefense attorneys in four case categories; serious delinquency(felony). less serious delinquency (nonfelony). PINS. and neglect/dependency. Case categories were accorded equal value and aver-

22

aged for attorney-prosecutors and defense counsel in each city.Where the average frequency of appearance for both prosecutorsand defense counsel in a particular city fell within the same quar-ter (for example, 0% to 25% or 50% to M% . that city's juvenilecourts were regarded as "balanced."

cutors in all juvenile cases. Further, whereas under

one-quarter of the judges in mums having an adver-

sary balance recommended an extension of theprosecutor's role, two-thirds of these same judges

approved his participation in all cases.In considering this possible disparity in judi-

cial attitude. two considerations must be kept inmind. First of all. many judges, otherwise favorablydisposed towards prosecution, may have respondedthat the role need not be expanded in their courtbecause prosecutors already appear in all types ofcases delinquent y, neglec t, dependent v ) .

Secondly, although many judges may prefer havingprosecutors appear in all types of cases, they mayalso feel that prosecutors should not become moreactively involved in certain phases of the process.such as the disposition:LI phase. Therefore, theymay approve a prosecutor's participation in allcases. but not an "extension of the prosecutor'srule" into other phases.

5. Narr.ttiz L' corn mcnts sponding toshrtel. The judges surveyed were requested toinclude their comments concerning the use of law-yer-prosecutors in juvenile proceedings and to notethe observed or anticipated consequences of theiruse. Of the judges who returned completed guts.tionnaires, i submitted narrative answers to thisquestion. Five of these were not responsive to thequestion and have been excluded from the sample.ft should be further noted that the 13 judges,covering 32 cities, may not be %%holly representa-tive of the 13' judges who returned completedquestionnaires.

Of primary interest is that the 1; judges wereunanimous in their support of the use of lawyer-prosecutors in juvenile court proceedings. Althoughseven judges expressed some reservations, not asingle judge could be classified as opposed. More-over, while a number of judges referred to specificneeds for professional prosecution such as in pre-paring and screening pi:titions, the vast majorityof responding judges cited the general need toestablish and maintain adversary balance in theircourts. This large group of respondents was par-ticularly mindful of the increased burdens that

23

increased defense counsel participation have placedon them and other court perso:;9el. Their supportfor professional prosec talon derived from an oftenexpressed recognition that the very nature of juve-nile proceedings has changed since Galli:. Whereasin previous years, the absence of professional prose-cution could be viewed as a prominent indicatorof the juvenile courts "non-punitive" approachand it presence as an unwarranted intrusionthe court's informal social service orientation, thesejudges are now concerned that they can not prop-erly fulfill their responsibilities in today's juvenilecourt u ith'iut the services of an attorney represen-tative for the state. Finally, support for professionalprosecution appears to cross philosophical divisionsand is found among traditionalists and modernists.

Those responding judges who favor the trendtoward increased formality in the adjudication ofjuvenile offenses tend to regard professional prose-cution as an important element in carrying forwardthe goals of the Gault decision. The statement of asouthern city judge is typical of this view:

The Gm* decision to me was like a breath of freshair blowing through the stale odor of a courtroom.If taken in its proper light. the spirit of justice canbe enhanced. . . . Ho wever. the lawyer-prosecutoris a must to carry out the necessary constitutionalsafeguards the juvenile is entitled to under currentSupreme Ce,urt decisions.

Another, much smaller group of judges whoview recent developments in juvenile law as dimin-ishing the court's capacity to address itself to thebest interests of its client population neverthelessconcede the need for professional prosecutors asa necessary complement :o expanded defense coun-sel participation. Although they decry the perceiveddemise of the traditional juvenile court model,there is a practical recognition by these judges that,for better or worse, the juvenile justice process hastaken on many of the characteristics of the criminalcourts and that such a system requires professionalprosecution. This view is reflected in the commentof a midwestern judge:

The G.m/t and Kc.mt decisions have created a juniorcriminal court. The old juvenile court philosophy

has been killed. Prosecutors are needed as in alt adultcriminal cases.

That the widely shared accep -nce of profes-sional prosecution in juvenile c is may overridebasic differences in judicial pilot.- sohy is furtherhighlighted by the examples of ,wo Californiajudges who indicate their approval of attorney-prosecutors for quite divergent reasons. One judgefavors strong prosecution as an important ingre-client in the evolvement of a non-permissive crim-inal court model which he favors for the adjudica-tion of juvenile matters. He stated:

I personally think of my court as a criminal courtfor the trial of persons under 18. . . . While I per-sonalty favor complete adversary proceedings withall constitutional safeguards for minors just as foradults, I disapprove of the philosophic rhetoric usedto justify wrist-slapping type punishment. I say

punishment advisedly f ...cause I don't believe inwhat is now laughingly called "rehabilitation.-

On the other hand, another California judge sup-ported the heavy use of attorney-prosecutors onthe theory that "many prosecutors are less punitiveor more realistic than some probation officers."

More than half of the judges who returnedcomments related their support of lawyer-prosecu-tors to the need to maintain a balanced adversarysetting at adjudication. There is a prevading senti-ment among this group that Gardt-related defensecounsel requirements have generated pressures onthe adjudicatory process which can only be ifietsuccessfully by a qualified state's representative. Inthe opinion of many .f tlv responding judges, theabsence of such a figure has resulted in a distortionof the roles of other juvenile court personnel andhas placed in question the very fairness of juvenilecourt proceedings. Primary among their concernsis the harmful effect of an unbalanced forum whichmay compel the judge to assume the responsibilitiesof prosecution. As one judge put it:

I find that lawyer-prosecutors are unequivocallyessential to a juvenile proceeding. Only recentlywhen there were none, the judge was required to bethe prosecutor as well as the judge. This untenableposition violated the rights of all the parties.

Another New York judge remarked as follows:

It is unthinkable that the complainant's case shouldnot be presented by an attorneyThis was the casein most delinquency proceedings up to a few yearsago. It caused the judge to act as prosecutor."

A judge in a court which seldom utilizes prose-

cutors and who feels that more are needed concededthat "otherwise the judge conducts the hearingfrom the standpoint of the prosecution." Anotherjudge, in urging the assignment of a full-timeprosecutor to his court, stated:

With a lawyer-prosecutor presenting the evidenceat the adjudication hearing we have found that jus-tice is not only done, but it appears to be done, inthat the judge does not have to be the prosecutornor does the probation officer who is supposed to hethe friend of the child.

24

These comments give added substance to theview that emerging due process requirements andmore aggressive defense counsel participation havecaused many judges to reexamine their role injuvenile proceedings. It is certainly evident thatmany judges favor a broader distribution of respon-sibilities at adjudication and are showing increasingdiscomfort with the need to supplement inadequateprosecution. As one judge candidly acknowledged:

One CdUNOt be a fair and impartial judge and con-duct an examination of the witnesses like a prosecu-tor.... No man can wear two hats.

Similarly, judges voiced concern that the workof other court personnel such as probation officersmay be damaged if they are called upon to presentthe state's case against juveniles at adjudicationhearings. The following comments are typical ofthis view:

I also dislike having a probation officer present acase against a child who quite probably will beplaced on probation. It places the officer in a con-flicting position.

" Although New York fudges greatly favored the use oflawyer-prosecutors, they were highly critical of the servicescurrently being provided by the Corporation Counsel. Theircomplaints centered on inadequate staff and lack of prepara-tion. In effect, they argued that while a step in the right direc-tion, existing prosecutorial services have not fully achievedbalanced adversary system.

. . . probatiim artier is hardly trained to carry thebreli The dso fed* that the probationftttcer tutt wc,tt t%il !tats the pre:Neuter eft

the cv Menu: And the LottnstIor to the Ittiniff.

6. sh mar) r,f nation.t1 surto. In summary.the results of the National Survey Lan be dividedas tol lost S:

a. ni /4 ft' (-worst! inz flit a mt. nt in fur entle po-ceedings. Studies completed in the }ears prior tothe (7,m/t decision indicate that juveniles wererepresented by counsel in only a small percentageof cases. This low frequency of defense counselparticipation was uniformly spread throughout ourmajor c irks. In markt.1 contrast to this pre -Gaultsituation. our data reveal a dramatic increase inrepresentation. For example, in delinquency casesbased upon a felony or serious crime, juveniles arenow represented from 75 -100"f of the time in amajority of the cities we surveyed. As might beexpected. representation is most frequent in thesecases and less so in non-criminal matters ( PINS),neglect and dependency cases, or less serious delin-quencies. There also exists variation between themajor cities. We may conclude that attorneys areplaying a far more prominent role than before,although full representation is by no means areality.

b. Attfenc) represcntdtion of the State. Responsesto the survey indicate that in most of our largecities attorney-prosecutors. now appear regularly.Some cities utilized attorney-prosecutors prior to1960 and others began the practice between 1960and 1967. A larger group of cities, stimulated per-haps by changes related to Gault. added attorney-

- prosecutors between .1967 and 1972. Mostprosecutors are drawn from the office of the localdistrict or county attorney.

In the majority of c irks, the attorney-prosecutor'sappearance is characterized as automatic. Whereappearance is at the court's request, these involveCases of adversary nature (i.e.. contested cases orthose in which the juvenile is represented by coun-sel . Other criteria included the cases of a seriousnature or those involving complex issues of factor law.

25

As with defense counsel, the frequency of theattorney-prosecutor's presence varies with the typeof case. When serious delinquencies are considered.in a majority of cities, attorney-prosecutors appearin a high percentage of cases. The frequency isdiminished in less serious delinquencies. non-crim-inal matters ( PINS ), and neglect and dependencycases. Although levels of defense and prosecutorinvolvement show similar variation by case type,overall, attorney representation of the juvenileappears to exceed that of the state.

An examination of the attorney-prosecutor'sparticipation in specific court functions revealsthat, by and large, his role is a restricted one. Herarely participates in initial detention decisions ortheir review nor is his lawyer's expertise oftenutilized in the preparation or review of petitions.He represents the state in pre-trial motions, prob-able cause hearings, consent decrees ( when theyoccur, which may not be often) and, of course, atadjudication hearings. However, the attorney-prosecutor's presence is diminished at the disposi-tion stage and only rarely is he responsible forrecommending dispositions to the judge.

c. /ags' views of the exp,tnded use of attorno-proseutors in fuvenile cortrt. judges were asked,"In your opinion, should lawyer-prosecutors playa more extensive role than they presently do in yourcourt?" A majority of the judges indicated satis-faction with the current extent of attorney-prosecu-tion in their courts. When the responses weredivided by the frequency of attorney-prosecutionin the various cities, this variable seemed unrelatedto the judges' answers. Another variable consideredwas the absence or presence of adversary balance(i.e.. equal attorney representation of the juvenileand the state). Where balance exists, judges weremore satisfied with the present extent of the prose-cutor's role than in unbalanced systems. These datasuggest that judges were far more likely to viewthe role of prosecution in relation to the amount.of existing defense counsel participation than interms of the present level of prosecution itself.

A second question asked, "Are you in favor ofhaving lawyer-prosecutors represent the State in all

juvenile c ases? A majority of the judges answeredaffirmatively, thus endorsing the idea of full par-ticipation. Judges whose c ities currently have heavyprosecutor participation favored full participationto a far greater extent than those from cities withless at rive prosecution. Support for broad partic ipa-tion was also tound, to a much higher degree,among judges whose systems evidenced adversarybalance. It would appear that where judges alreadyhave extensive experience with attorney-prosecu-tion they are much more comfortable with involv-ing the prosecutor in all juvenile cases.

On the one hand, we have a majority of judgessatisfied sc ith the current extent of the prosecutor'srole, and on the other, a majority endorsing fullparticipation by attorney-prosecutors in all juvenilecases. One possible explanation is that judges mayendorse participation in all cases as an idea but feelthat in their court it has already been achieved andthus requires no extension of the prosecutor's role.Another possibility is that judges favor participa-

26

tion in the full range of juvenile court cases butnot an extension of the prosecutor's role withineach case (i.e., pre-trial screening or recommenda-tions for disposition) .

The judges surveyed were encouraged to includeextended comments concerning the use of attorney-prosecutors in the juvenile court. The judges whoreturned narrative comments were unanimous intheir support of the use of attorney-prosecutors. Inthe vast majority of responses, this support couldbe related to the increase in attorney representationof juveniles since Craft. While a number of judgesraised specific needs for professional prosecutionsuch as in preparing or screening petitions, mostcited the need to maintain adversary balance intheir court. And although there were philosophicaldifferences among judges with reference to Gault.the recognition of the need for attorney-prosecutorsin the juvenile court setting seemed to override anybasic differences in judicial philosophy.

CHAPTER IV

THE IDENTIFICATION OF PRELIMINARY OBJECTIVES FOR PROSECUTIONIN THE JUVENILE COURTS

While the national survey and other materialwhich has been reviewed does reflect a trend towardthe expanded use of professionally trained prose-cutors in juvenile court proceedings, within thetrend, there appears to be no coherent developmentof a role or set of functions, objectives, and prior-ities for juvenile prosecutors.

In the opinion of many, a juvenile court prose-cutor should undoubtedly have an orientationwhich is different than that of a traditional prose-cutor.' For example, Judge Whit latch interpretsOhio law to require that the juvenile court prosecu-tor not really "prosecute," but rather "assist thecourt to obtain a disposition of the case which is inthe best interest of the child." And Professor Fox,in his model legislative proposal, attempted to drafta scheme based upon the notion that the juvenilecourt prosecutor should not be "conviction minded,"but that the child's interest should be an importantconsideration governing his conduct.'

In one state, Arkansas, an effort has been bystature to formulate objectives for juvenile courtprosecutors:

Duty of prosecuting attorneys. It shall be the dutyof the prosecuting attorneys of this State and their

!See. e g.. lux. pihtecnturi in !be Intenile (niir A Shari-rt.r) Pit,reinfor. ti Harv. Leg. 33 19'0 NCCD ModelRuler for fro vale Currr. I torment to Rule 24 1969) Pres-ident's Commission on Law Enforcement and Administrationof Justice, ntik Forte Report: Arendt, Delinquenci, and YouthCrrrne ( 196' a at 3.1 thereinafter cited as Talk Force Report,.But lee Rubin and Smith, The Fature of the Juvenile Court:Implhdrieor; Ctirrirtfitml Mar/pm er and Troioing (19(,8)at 15-16 accepting the district attorney in this role.

2 Whitlock. The Gdtilt Dreilinv: 1tr Effect Hi: the nate ofthe Prnie,Orrn.i; AfteeNe1..11 Ohio Bar J. 41 (19ritt P.

3 Fox, Espra note 1.

27

deputies when called upon by the chief probationofficer or by the juvenile court o aid and counsel inany case before the juvenile court, but said proceed-ings shall at no time assume the form of an adver-sary suit, or a legal combat between lawyers. On thecontrary, it is understood that such public officerappears in such cases as a defender on behalf of thechild for its best interest and to aid in the redemp-tion of such child from delinquency and its restora-tion to citizenship, as well as he appears on behalfof the State and for the welfare of the community.4

Also in an effort to prevent the juvenile courtfrom turning into a carbon copy of the adult court,the President's Crime Commission in 1967 sug-gested the possibility that district attorneys not begiven the responsibility for prosecuting in the juve-nile courts:

To the extent :hat the presence of counsel for thechild (or the parent) in contested adjudicatory pro-ceedings in based upon or would result in a closerapproximation of the adversary system, the presenceof counsel on the other side may be necessary toachieve the virtue of that system. Using the publicprosecutor may be too great a departure from thespirit of the juvenile court. But experience mayshow some legal representative of the public, per-haps the corporation counsel or a lawyer from thewelfare department, to be desirable in many cases.5

As the national survey indicates, however, mostjurisdictions now utilizing attorney-prosecutors areusing staff from district or county attorneys offices.

Further, interviews by project staff with judges inone jurisdiction suggested that perhaps this should_ .

4 Ark. Scats. Ann., Tit. 45, N 45-217 (1965p.3 Talk Force Report. (Apra note 1, at 34.

be the case for serious delinquency matters whencomptent counsel represents the juvenile. Thejudges in this jurisdiction stated that city attorneys,for example, are simply not equipped to prosecuteserious criminal-type cases. They argued furtherthat the closer the juvenile justice system movestoward an adversary due process model, the moretraditional prosecutor-type skills will be needed bythe government's representative in juvenile court.

Given this potential conflict in role requirementsand given the lack of conceptional development ofobjectives for prosecution in the juvenile court, theCenter found it necessary to formulate some gen-eral principles which might govern a juvenileprosecutor's rule and which might serve as a basisboth for assessing current efforts and for structuringimproved programs in the future. These principles,which ce have used as a starting point for ourexamination of the system of prosecution in theBoston Juvenile Court. have been drawn primarilyfrom our review of statutes, model laws and stand-ards, court decisions, court rules, and scholarlywritings. The formulation is a tentative one, whichis to be tested on a continuing basis as we learnmore about prosecution within the juvenile justiceprocess.

This preliminary formulation of general prin-ciples or objectives for juvenile prosecution is asfliows:

. The prosecutor is an advocate of the State'sinterest in juvenile court. The -State's interest" iscomplex and multi-valued, and may vary with thetype of proceeding and the nature of the particularcase. Foremost, it includes: (a) protection of thecommunity from the danger of harmful conductby the restraint and rehabilitation of juvenile offen-ders: and ( b ) concern, shared by all juvenile justicesystem personnel, as fidans parlay. with promo-tion of the best interests of juveniles.

2. To the extent that the State's interest in com-munity protection may conflict with its interest aspdrant patriae in promoting the well being of apanic ular c hill, the prosecutor will be required tobalance the interests based upon the nature andfacts of the panic ular case. For example, to the

extent that interests have to be balanced in givencases, the balance should be struck in favor of com-munity protection when the juvenile presents asubstantial threat to public safety, but of promotingthe well-being of a child for most other types ofoffenses.

3. In his role as adz ocate, the prosecutor hasresponsibility to ensure adequate preparation andpresentation of the State's case, from the stage ofpolice investigation through post-disposition pro-ceedings.

1. Commitment to the rehabilitative philosophyof the juvenile court bars the use of tertain penalobjectives to achieve community security and pro-tection. Retribution and general deterrence, forexample, are not proper goals of juvenile courtproceedings.

5. Since unnecessary exposure to juvenile courtproceedings and to formal labeling and treatmentin the juvenile court process is often counter-productive to many juveniles, the prosecutor's dutyto promote both the community's long-term secur-ity and the best interest of particular juvenilesrequires him to encourage and stimulate early diver-sion of cases from the court and to strive forimposing the least restrictive alternative availablein dealing with a juvenile throughout the juvenilejustice process. It also requires that a prosecutorproceed only on legally sufficient complaints orpetitions even though a juvenile may require treat-ment or other type of assistance. Responsibility inthis area is exercised by such means as issuing en-forcement guidelines to the police, screening outdeficient, insufficient and trivial complaints, andactively encouraging and participating in efforts torefer juveniles to other agencies or reach agreementon other acceptable dispositions.

6. The prosecutor shares the responsibility withother juvenile court personnel to ensure thatrehabilitative measures undertaken as alternativesto court handling or pursuant to court-ordered dis-position are actually carried out, and that facilitiesand services for treatment and detention meetproper standards of quality.

7. The prosecutor has a duty to seek justice in

28

juvenile court, by insisting upon fair and lawfulprocedures. This entails the responsibility to ensure,for example, that baseless prosecutions are notbrought, that all juveniles receive fair and equaltreatment, that liberal discovery of the States caseis available to defense counsel, that exculpatoryevidence is made available to the defense, and thatexcessively harsh dispositions are not sought. It alsoentails the responsibility to oversee police investi-gative behavior to ensure its compliance with thelaw.

In the review and analysis of prosecution in theBoston juvenile Court that follows, these principleswere used in assessing prosecutorial functions per-formance at various stages of the juvenile justiceprocess. These stages include:

29

1. Pre -court stages

a. Relationship with policeb. Preliminary detention or bail decisions

2. Court stagespre-ad jakation and adjudica-tion

a. Relationship with intake staffb. Complaints/petitionsc. Pre-adjudication diversion or resolution of

cases

d. Investigation and preparation of casese. Motions and discoveryf. Presentation of state's case

3. Court stagespost-adirdicationa. Dispositionb. Appeals and collateral attack

CHAPTER V

PROSECUTION IN THE BOSTON JUVENILE COURT

A. HISTORY OF THE BOSTONJUVENILE COURT

Massachusetts first enacted comprehensive juve-nile court legislation in 1906? seven years after theinitial juvenile court was established in Illinois in1899.2 other legislation relating to the handlingof juvenile c ases in Massachusetts was already ineffect before this time, however. For example, an1870 law provided that in Suffolk County (Boston),cases against c hildren were to be heard "separatefrom the general and ordinary criminal business"of the courts and were not to be consideredcriminal :' This was later extended to give separatetrials to all children in Massachusetts s and to pro-vide for a separate "session for juvenile offenders"with its own docker and court record.'

The 1906 Delinquent Children Act articulatedthe MP-La/5 patriac concept which the Boston Juve-nile Court was to follow:

This act shall be !therail" oinctrued to the end thatthe care. custody and discipline of the childrenbrtught before the court shall approximate Js ',curl }.

Jf poll/hie that which the) should receive front their'wenn. and that, as far as practicable. the) shall betrotted. wit Jr ;:rintinalr. but Jf children in need of

cnc,itiraKe ntent. and guidance. Proceedingsagainst children under this act shall not be deemedto be criminal proceedings." (emphasis added]

Two acts were passed in 19c16 An Act Relative to Dehnquent (hil.lren, ch. II t t the Mass. Acts of 1906, and "AnAct to rifAbli,h the Roston juvenile (:ourt:* ch. 89 of theMass Ain i ')(1(,, elf el, %I,. Sptertilser I. 1906.

a At, ot Apol !Yr), Ill Laws lel 1 Q.§ t (11499).3 Mass. Acts ..t h

Mass. Acts apt 1 s I, h. 'tits.

Mass.

1 Mass

Al t% 14 111 th 210, # s..t foie._ th 114. l* 2.

30r .

In turn, the Boston Juvenile Court Act estab-lished a separate court for the handling solely ofcases against children. Prior to this Act, Bostonjuvenile cases were heard in separate sessions of theBoston Municipal Court. The Boston JuvenileCourt Act called for the appointment by the Gov-ernor of "one justice and two special justices," aswell as a court clerk.? The court was given broadpowers governing its own operation: it was toappoint two paid probation officers and "as manydeputy probation officers, without salary as .

advisable" to make "investigations of cases ofchildren against whom complaints have beenmade." The court could also "continue from timeto time the hearing in respect to any child," thuspermitting investigations to be made. It was fur-ther authorized to make its own procedural rules;to hear cases either in chambers or in special juve-nile court sitting rooms; and to release a child eitherupon the written promise of the parents or in locoparentis that the child would appear in court, oron bail if otherwise eligible, "in order to avoidthe incarceration of the child." "

The Boston Juvenile Court was to have the samejurisdiction as the Boston Municipal Court, whichincluded the business sections of the city and theperiphery." A separate juvenile court was estab-lished only for Boston; in other areas, the existingmunicipal or district courts, the lowest level trial

Mae.. Atte of 1906. eh. -OAc Ibid.

9 That is, the %Vett End, fe:orth End, South End, and theBack Bay areas. Jurisdiction was amended by statute in 1969 toinclude that of the Roxbury District Ciwrt, which (livred anarea inhabited primarily by lowintune Ininiirity groups. '(.h.:459. 43 I IA, Macs. Acts of 19691.

courts in Massachusetts, were allowed to retaintheir jurisdiction over imlai: cases."' The juvenilesessions and the Boston juvenile Court were tohave jurisdiction over:

any boy of girl between the ages of sec en and svtt-tutft yt.%11'4. whet AtIV city t wtint.ttity eft townby-law, or commits an offense not punishable bydeath or by life imprisonment_'`

This was amended by statute in 1960 to give thejuvenile courts jurisdiction over all juvenile casesby eliminating the exception for crimes carrying asentence of death or lite imprisonment."

The degree of formality and technicality of Bos-ton juvenile Court operations has varied over theyears. The first justice of the Boston juvenile Courtwas Harvey Humphrey Baker, an 189 i graduateof Harvard Law School. Before coming to the Bos-ton juvenile Court, judge Baker worked for a yearas clerk of the Police Court of Brookline, and from1895 to 1906 he served as a special justice of thatcourt. Concurrently, judge Baker began a privatelaw practice when he graduated from law schooland continued such practice up to his death."While early accounts of the court are vague, it isknown that judge Baker conducted his hearingsin a very intormal, paternal manner." This wasbecause of the prevailing pareni pariac concept Ofthe juvenile court, with its emphasis on individ-ualized treatment of the particular child rather thanon adjudicatory fact-finding. Throughout his tenurein the Boston juvenile Court, judge Baker wasapparently c oncerned with the background and cir-cumstances of the child and with widening thedispositional alternatives for him: correspondingly,less emphasis was placed on the legal sufficiency of

4" In 191,9, the legislature also established separate itiventlecourts in Worcester and Springfield (ch. 859. 0 0 1.2, Mass.Acts of 19691. Presently there are three iusenile courts and 69juvenile sessions in Massachusetts.

it (.h. .41 # I. Vitas, Acts ot 196.i. C.h. 54, 0 I. Niti%%. Alt% sit 19(0. The LW part of the sen-

tence now reads . . who commits any offense aitainstlaw of the ,onittionwealth." Mass. Gen Laws Ann., It

191.9,13 1u.lge Ktket Emndation, ! lumpbr, IL,

inenVer e., tbe h.! e Gesso` 2 ; i 1921) r .

Is . At .1 -6

31

facts which would lead to a legal determination of-guilt.- '

Upon his death in 1915, judge Baker was suc-ceeded by Frederick Pickering Cabot as Presidingjustice.. His conduct of the court, as reported in(hic. gin PM. a study by Sheldonand Eleanor Gluec k of the Boston juvenile Court'sclients, was as follows:

Generally speaking, the pre kedure employed by theiliage was in the beginning much more technicalAnd legally formal than in later years. Nor was thejudge originally concerned with the personality dif-ficulties and social background of his youthful clientsas he was during the last five or six years of hisservice [P)15-19321. When a lawyer was presentat .i hearing, the court as a courtesy to the attorney-proceeded along lines of more or less cross -exam-ination." later in his experience, judge Cabot wouldask counsel what procedure he wished him to apply,and whethet he desired to question the boy. Duringhis last ten years the judge stressed the informalfeatures of the hearing He would take the initiativein the exatnination and when he was through hewould inquire of counsel whether he had anythingto ask the juvenile.`'

judge Cabot was also instrumental in the estab-lishment of a child guidance clink for the Bostonjuvenile Court, which was a goal of his predeces-sor, judge Baker. In a report of the first five yearsof the operations of the Boston Juvenile Court,Judge Baker said that:

A clink for the intensive study of battling caseswhich fail to respond to ordinary probationarytreatment would enhance the efficiency of the courtmore than any other accessory."

As a result, the judge Baker Foundation, as thecourt clinic is known, was organized in 1917. Itbegan operation under the direction of Dr. AugustBronner and Dr. William Healey who, in 1909,had organized the juvenile Psychopathic Instituteof Chicago, this country's first juvenile court dini.'"

17' U. at 6 In,1"Cilueck and Glueck. One Ms land Othrhim nit 29

I 19i r.17 judge Baker PoutidatiAm. note' 14. at "9."Utica and (aura. ifprd note IN at -16 I ",

It was the opinion of Doc tors Healey and Brunnerthat:

the innate and conditioned makeup of the offender,which contributes to his delinquency, must be stud-ied and controlled in childhood; that anti-socialattitudes and conduct nuy and do originate sur-prisingly early in the Ike, of thip,e who Jeri' heti .medelinquents and criminals.'"

The Gluecks describe Judge Cabot's evoavingcriteria for Boston Juvenile Court referrals to thecourt clinic:

In the earlier days of Judge Cabot's incumbency,also, he had no dearly defined notions as to whichLait'S he should refer to the J.B.F. clink for physicalAnd mental examination. Only when he felt reallypuzzled or saw that the juvenile before him obvi-ouslc some physical or mental handicap wouldhe refer him to the clinic fur examination. . . .

several years ago, the Judge appears to have cry-stallized the policy of sending the following typesof cases to the clinic for examination: children whohad prior records of delinquency; those retarded orin a special class in school; and those regardingwhom some question of health had been rakedduring the hearing. But even this policy was notalways uniformly followed. . . . During the lastfew years of Judge Cabot's ircumbency, practicallyall case; of juvenile delinquency were referred bycourt to the clink for examination."

While the nature of the court examination haschanged over the years with the developing con-cepts of psychological and sociological evaluations,the purpose of the clinic has remained essentiallythe same: to make dispositional or treatmentrecommendations to the Boston Juvenile Courtbased on clink examination findings!'

John Forbes Perkins became the Presiding Jus-tice in 1932. He further stressed the importanceof "early diagnosis and an immediate program ofrealistic readjustment." To that end, he inaugu-

1.6 1.1.. at i" ,is. ur ta, rjai Tice idm.t1 Dr:IPI.fat Pli ( 1913

;!" 1.1. at . ") 4),'II Id at Si": 0 Lem.). Att.f 11.tvert. ..11, ot, jar glide Catirt---

ff,r00...1964 4r f, Rep >it by the. Research nepAtttileht% fit the.111t-tit:t. t "Ur? Mut the ( iritenship Training Group,

.

rated in 1936 a privately funded agency nowknown as the Citizenship Training Group, Inc.The CTG program, a special probation program,combined "recreation, crafts work, discussionperiods, and similar therapeutic devices to keep theboys profitably busy." The CTG still exists,although it is now partially supported by the state.

During this period, hearings were conducted in avery informal manner. Beginning with the lastyears of Judge Cabot's incumbency, the court wouldoften talk to the child and/or the parents in cham-bers, without anyone else present. An effort wasalso made particularly by Judge Cabot to dissuadechildren and their families from appealing juvenilecourt decisions by stressing the patens parke atti-tude that the court was only trying to do what wasbest, and that if there was an appeal, it would beto a regular criminal court where the case wouldbe dealt with more legalistically and thus, moreharshly!'

When Judge Perkins resigned in 19.15, he wassucceeded as Presiding Justice by John Joseph Con-nelly, a Boston College evening Law School gradu-ate who had worked under Judge Perkins as ajuvenile court probation officer since 1933. Withthe incumbency of Judge Connelly, the BostonJuvenile Court hearings became somewhat moreformal. In 1961, Judge Connelly described hiscourt's hearings as follows:

he Boston Juvenile Court does not have hear-ings outside the court. oftentimes described as"informal hearings." Our system of procedure ismuch like that of the English juvenile courts. Wehave the allegations first. The child and his parentsare confronted with the witnesses. They have theopportunity to cross-examine witnesses. Generallythe judge who must, under the law, hear and decideevery case has no information before him exceptthe evidence presented to prove the fact of thechild's delinquency. Although hearings are some-what formal and secret, and strict rules of evidencedo not apply, the Massachusetts law does insist upon

32

2" . ut -. Ste. Baker Foundation. .stristJ note 13.at it i I. fur a detailed deutiption of the %orking% of theCitiiett+hip Training Group rugram.

GIUM Anti Gluvek. supra note at 10-11.

the Lhild relish ing .1 full hearing of all the fastsAfter the lte.itittg the wort sonstdrs the social

history. together '.t uh all other intormtion gab_ered by thy pri,lutton ottker. and deckles N hitth'ertt1tt %hould he made of the :Asc.'

MaisAtiltN:tts is one tit the few states whit h doesnut statutorily provide lin' an intake s) Shin ttlr itsjuvenile courts. Thus, as Judge Connelly alsopointed out, "'Unlike many t ourts, the Boston juve-nile Court seldom, if ever, has pr-hearing investi-gations of the child, his delinquency. and hisenvironment...

When Judge Connelly died in 1961, he wassucceeded by Francis G. Poitrast. who is the cur-rent Presiding Justice of the Boston juvenile Court.Under Judge Poitrast. Boston juvenile Court hear-ings have become procedurally more formal. Evenprior to Gaidt and Kt nt. for example, judge Poit-rast had initiated the safeguards required in thoseopinions and almirt all of the children who comebefore his court are represented by counsel. As istraditional with district courts in Massachusetts,the State has long been and still is represented indelinquency hearings by police prosecutors!' Thecase against the juvenile presented either by aspecial police prosecutor or, in some cases, thearresting officer.

B. BOSTON JUVENILE COURTPROCEDURES

i. Aria/a/on. By statute, the Boston juvenileCourt has territorial jurisdiction over the sameareas as the Boston Municipal Court and the Rox-bury District Court combined!" This includes thedowntown business, entertainment, and govern-

ILI .1. .k -1 ft. 1/.1:411 .01.1 1..114 R tt Pr e

ii. tee ( kit it) lutte1 Pre -t lts, I it the Institutejeivnt:e ( urt s %, Avid 19,4 to ( imistidge,

Mi...

and Clkaltp. bre th, m tit /..derCrIrrurbe kit. 111,r1 4i) I A report bythe Lan 1 rt. ( "Ilinlattx id Rights Undir Law 19-01.The It.%util It .M4 cr.. tt.in the cat,. Dn. p.,lit p.t tat t %Anilthe lull...ill ts..11 I It flit. ILA-I:1111c (.. HMI rt..' tit tn. At ofthe. ca.e. .tit.1111,t t

-. Nla ( wn Iaa, Ann s 1 N. #S# S 1. .! upp 1't''t.

33

went sections, and adjacent residential areas, suchas Dorchester, Roxbury. the North End, the SouthEnd, and part of flack Bay.

The Boston juvenile Court has exclusive juris-diction "over cases of juvenile offenders underseventeen and cases of neglected wayward. or delin-quent children" within its territorial limits!" Thisincludes the case of an individual "who commitsan offence or violation prior to his seventeenthbirthday, and who is not apprehended until afterafter his eighteenth birthday."' A wayward childis defined as:

.t child between seven and seventeen years of agewho habitually associates with vicious or immoralpersons, or who is growing up in circumstancesexposing him to lead an immoral, vicious. or crim-inal life. P1

A delinquent child is defined by statute as:

a child between seven and seventeen who violates.my city ordinance or town by-law or who commitsany offence against a law of the ( :ommonwealth.32

In Massachusetts, the juvenile court's delin-quncy jurisdiction includes misconduct which con-stitutes a criminal offense only when engaged inby persons under seventeen years of age. In addi.

1:1' Mass Urn. Lin. Ann. c. 21t+, (4) (Seipp. 19'2 J. oftat,, foe rt, r t. N.E. 2.1 (4,1,-- Miss pro Iwhich sass that ittristitt th in lies in juvenile court sessnen inthe first instinct. for children Aged seven to seventeen. TheRosh In hit Mlle C. suit can at-1SO have turisaittion oect cases in-voking tintibuttng to delinquency. child abuse. nci Irtt. etc..but these arca. are not tfw subject of this study and thus theirhandling his bcen omitted front this discussion.

An exception is nude to luceml court jurisdiction fur traffictiolation tollows:

lilt the child is over le% and tinder 1" a criminAt coin.Plaint m.iy PAM' against him nithout first ismummingdelinquency proceedings it 1w is charged with michitcis lations of Loss of the ishici 1.1%% regulating motor%chick. not punishable by imprisonment or A tine tit motethan 5100. The purpose of this 1.1w, is to enable the tottft%

{1:41 with a chill ul nemsericlus minor ,chairthins without invoking the procedures pertaining to nivenay elhnipients and unbend placing the libel 'juveniledelinquent" on him or her for some minor infractiin trf.1 traffic last, Pssets. lb, /1444 Mt/talon' tat dif, Abtimi.Fahm/ (4 krtict m Mal 4.1, vie ft; I 9dis

.**NIAss. Gen. 1..ms Ann. c. 119,0 -2A (19(69,."I (irn. LIN% Ann... 119, N 5^ i 19(19 I .vs! if.,"

tion to wayward ne:ss. such offenses include that of"stubborn child," tr(s.111( y, and running away.33 A"juvenile offender," a term which apparently hasno statutory definition, refers to a "child betweenthe ages of fourteen and seventeen, charged witha criminal offense."'" The value of this distinctionappears in the waiving of juvenile cases to criminalcourt, which is discussed below.

2. Initiation of kill- Nile delinquency eines. Stat-utes refer to the arrest of child "with or withouta warrant," " but do not provide criteria. Mostdelinquency cases brought before the Boston Juve-nile Court apparently originate with children beingarrested by the police while in the process of com-mitting offenses. However, there are statutory pro-visions for initiating cases by complaint to thecourt. In slit h OW. where:

MA& to any court that a child betweenseen and seventeen years of age is a wayward or adelinquent thild, said court shall examine, on oath.the 4:omplaitunt and the witnesses, if any, producedby him. anti shall reduce the complaint to writing,and t.ufse it to be subscribed by the complainant."

This same procedure is followed by the court whet:a policeman brings in a child that he has arrested:there is a hearing before the court a which in prac-tice is conducted by one of the juvenile courtclerks ), and the decision is made whether or notto issue a complaint. If the complaint is issued, itwill be drafted by the clerk on the basis of thepoliceman's statements, and it is signed by thepoliceman. The clerk's refusal to issue a complaintmay be appealed to the judge.

3. Notice,' dnd ghtcntion. When a child isarrested, with or u ithout a warrant, he will betaken to a police station or "town lock-up" wherethe officer in charge "shall immediately notify"the probation officer of the court with jurisdictionover the child and also a parent or guardian.'

.1 Nth. (ten Len. Ann. 5 t 1 19-nt." Kt.itAtig. 11J ,dt Nt.(111 Litt Raillfig t., ILL P i, qiit

f ,lett. ill Nth 1..a% Q 191 191t1

M.4, n 1r%. Ann t 11', g ',UPI'. I( 1.A Aim t § S I ')(19 ,

( It n Law Aim 11'i. surp. 19-2 I .

Children can only be detained in "separate anddistinct facilities." 3'1 The probation officer is

required to "inquire" into the case and, "pendingsuch notice and inquiry, the child shall be de-tained." The child can be release by the officerin charge if he accepts a "written promise" by theparent, guardian, "or other reputable person" tobe responsible for the child's appearance in courtwhen scheduled; the probation officer can alsorequest that the child be released to him."

On the other hand, the child may be detainedif: I) he is between fourteen and seventeen yearsold, and 2) the arresting officer requests :n writingthat the child be detained, and 3) either the court,in its arrest warrant, or the probation officer of thatcourt, "directs . . , that such child shall be heldin safekeeping pending his appearance in court."In such a case, the child will not be released uponthe written promise." However, the statute specifi-cally provides that the child will still be eligiblefor release on bail."

In practice, the child is usually released to hisparents at the stationhouse upon their writtenagreement to produce the child at the complainthearing, which is generally held the following dayand presided over by the Boston Juvenile Courtclerk see "Initiation of juvenile DelinquencyCases," sora). lithe child is to be detained, he issent to a detention center, where bail is set.

.1. It is not clear from the statutes whetherjuveniles have an absolute" right to release on bail(or recognizance ). The statute pertaining to detention following arrest states: "Nothing contained inthis section shall prevent the admitting of such achild to bail in accordance with law." " This sug-gests that a child may be admitted to bail unlessthe offense charged is nonbailable by statute. Theonly crime whit' is designated as nonbailable bystatute is "treason against the Commonwealth"

34

1.4

3'I" Md.41 lind

SU /ha13 Mid

t which. incidentally, is not a capital creme 1;"even first.degree murder is bailable, although atthe discretion of the trial judg.' It would seemreasonable to assume. therefore, that anythingcharged against .1 jucend would also be bailable.

Furthermore. the pre trial detention section ofthe law pros ides that -A c held between seven andsec enteen years of age held by the court for furtherexamination. trial or continuance, or for indict-ment and trial . . . it unable t.) furnish shallbe committed by the court.. .." " This section canbe read AS satins; that a child is to be admitted tobail unless he cannot raise the money Or collateral;the presupposition is that..whatever his offense thatprovides the basis for the delinquency charge, thechild should be entitled to hail.

In addition. the Bail Reform Act of I'll) essen-tially provides for .t defendant's release on his ownetc ogre iZant c t ROR ). unless he is charged with acapital crime or there is good reason to believe thatROR will not reasonably assure the defendant'sappearance before the court.' A child can onlybe adjudged "delinquent" by the juvenile court,even it .1 capital crime furnishes the basis for thedelmquenc y complaint. and the juvenile court can-not impose a death sentence as a disposition for adelinquency finding. Thus, it would seem that theBail Reform At provides more weight to theinterpretation that a juvenile defendant can beadmitted to bail. if not released on recognizance,because an adult charged with the correspondingriminal offense would be released.

Statutes do not specifically provide for the set-ting of bail for juveniles appearing in the BostonJuvenile Court. However. in other district courts,

an be set by the judge, a court clerk, a "masterin c ham tr." or .1 special ( bail ) commissioner." Inpractice. a detained child will have his bad initiallyset by the bail bondsman for release prior to court

4$ r cf., letici Mat' ."). ilf, .m.1 %U Get) 1.01.

!II

1+; /P.' h 1141, r.

N I 19,11" t n Ann 1 ' tf toi "urp 10'2sr Ntr., (.4.n 1. 44.4.. Ann. Sh supp1' 41.. (0-n 1., '1 Alit, S t l' .!

t.. 104,

35

appearance; bail will then he reset by the judge thenext day when the child appears in wort.

S. .4rraignment and iwance 'if ',mall. In thetypical case, the complaint hearing is held beforethe clerk the day after the child is arrested by thepolice. If the clerk decides to issue ic complaint, thechild is then arraigned before the judge in a sessionof the juvenile court. At the arraignment, the judgeinforms the child and his parents of the chargesagainst him ( that is, the allegations in the com-plaint ), and informs him of his rights, includingthe right to counsel. If the child is indigent andhas no counsel, an attorney is appointed at thistime.

After the hearing on the complaint, the court( through the clerk) makes an issuance of processin the form of either a "summons" or a "warrant."The summons is issued to the child if he is undertwelve `" and to his parent or guardian,' orderingthem to appear before the court, with day andtime specified, to "show taus: why such childshould not be adjudged a wayward or delinquentchild." " If there is no known parent or guardian,"the court may appoint a suitable person to act forthe child." The court can also "request" theattendance at any proceedings" by "an agent Of

the department of youth services" by giving reason-able notice to the commissioner of youth services."

The summons is to be used in delinquency casesif the child is twelve or older, unless the childhas already been summoned and tailed to appear,or if "the court has reason to believe that he willnot appear upon summons,"

in which case . said Limn may issue a warrantmiting the substance of the complaint, and requir-ing the officer to whom it is directed forthwith totake such child and bring him before mid court ...and to summon the witnesses named therein toappear...."

(km. 1..m. Ann. t 119, f5 9 t r upp. 19-21.(kn. 13%, Ann. c. 119, N SS t Sapp Pr; .

Mid/kid./NA

I.,41% Ann. 119, ti 1)(1');

Attached to the summons issued to the child isa copy of the complaint and notice of the rightsto: I) "legal counsel at all stages of the proceed-ings"; 2) the appointment of counsel if indigent;3) a hearing; .1) the privilege against self-incrimi-nation; 5) confrontation and cross-examination ofwitnesses; 6) compulsory process ( producing ownwitnesses); 7) appeal to the superior court of adecision of the juvenile court; and 8) a continu-ance of the hearing.' The summons issued to theparent or guardian and to any "other person oragency" will have a copy of the complaintattached.' If a parent, guardian, or agency repre-sentative tails to appear in response to a summons,the court can issue a CdPitt$ to compel attendance.'It should be noted that the juvenile court can sum-mon the parent or guardian at any time during thependency of a delinquency case, even during proba-tion "or after the case has been taken from thefiles," if the child is under l 7.'

6. Adjudicator) hearingconfidentiality. Stat-ute provides that all proceedings against juvenilesare to be confidential. Hearings are to be held inseparate courtrooms or in chambers. A separatedot ket and record must be kept for juvenile cases.Minors are not allowed to be present unless theyare parties or witnesses in the proceedings; "thecourt shall exclude the general public from theroom, admitting only such persons as may have adirect interest in the case."

7. Parties present. As previously stated, the childand his parent or guardian are brought before thecourt by either a summons or a warrant." Rule 79of the Supreme Judicial Court, which applies to alldistrict courts, requires the assignment of counselto represent a defendant "at every stage of theproceeding unless he erects to proceed withoutcounsel or is able to obtain counsel." ni Rule 85,which applies to juvenile cases specifically and

7.7. Ma.. ni.tritt. t curt Rule 14; (

-"NU.. District Court Rule 1 .

" Ma.. (kn. Loss Ann. c. 119.0 "I (1969).Mace. Gen. Law. Ann, c. 119. N -0 (1969) .

''' Ma.. (.en. Law. Ann. t. 119, N M (1969 t1'1' Ma... (tn. Law. Ann. I,. 119. N 55 Sully,. 19-2 r.'9 Ma... Montt outt Rule ") 19'2 .

36

which is governed by Rule 79, requires:

a child between seven and seventeen years of ageagainst whom a complaint is made that he or she isa wayward or delinquent child, ;ball be representedby counsel at every stage of the proceedings if itshall appear to the court that such child nu; becommitted to the custody of the Youth ServiceBoard as the result of such complaint. 2 [emphasisadded]

Arguably, since any complaint hearing may resultin a child's being committed to the Youth ServicesBoard, there must be counsel in all cases. In prac-tice, the vast majority of the juveniles are repre-sented by counsel. In cases where a juvenile is notrepresented, the judge will proceed only after hehas satisfied himself that both the child and theparent or guardian have made an intelligent waiverof the right, and he decides that there is no pos-sibility of committal."

The probation officer assigned to the case mustappear at the hearing and "furnish the court withsuch information and assistance as shall berequired."' Prior to the complaint hearing, he isrequired to make an investigation and a reportIfregarding the character of such child, his schoolrecord, home surroundings and the previous coin-pliiints against him, if any," " although suchinvestigations arc rarely done until after a findingof delinquency is made. Pre-hearing investigationsare normally confined to such information as age,name of parents, and financial ability to retaincounsel.

8. Conduct of the hearing. The statutes arevague as to how the hearing shall be conducted:

At the hearing of a complaint against a child thecourt shall hear the testimony of any witnesses thatappear and take such evidence relative to the case

as shall be produced!s'

There is no provision for prosecution of the case

Mass. Dictrilt COUrt Rule 55 (19-2).'one statutes and the rules are silent as

the right to counsel for a child.

" Mass. Gan. Laws Ann. c. 119, N 57 (1969.

"5 Mid,"Mass. Gen. Laws Ann. c. 119. /1 969 I

to who may waive

or for presentation of the evidence against thechild. In the Boston Juvenile Court, one of the

policemen designated as juvenile officers generallyserves as the prosecutor, although the arrestingofficer may present his own case. No provisions aremade as to the degree of formalit of the pro-ceedings.

9. Adjudication Jed ilifposition. Allegations

must be "proved beyond a reasonable doubt" indelinquency and wayward child cases.' However,the fact that the allegations are so proved does notrequire a finding of delinquency:

If the allegations against a child are proved beyonda reasonable doubt, he Ind) be adjudged a waywardchild or a delinquent child." [emphasis added]

Instead, the t ase may be "continued without a find-ing" by the judge, whose authority to do so restsin his power to adjourn a hearing "from time totime." "

Alternatively, the court may decide to waivethe child to adult criminal court (see Iraier,infra) or to adjudge the child delinquent. If thechild is adjudged delinquent,

the court may place the case on fik, or may placethe child in the care of a probation officer for suchtime and on such conditions as may seem proper,or may commit him to the custody of the departmentof youth services.'"

If a case is filed.

Into formal sentence is imposed. Nor is the defen-dam subjected to probation, with formal conditionsdictated by statute. The judge by filing a case putsthe defendant on notice that the case rt.ay be calledforward at any future time for sentencing. And thepossibility of a later sentence acts as a continuingint entive to avoid further involvement with the ...court. If a . . . sentence is later imposed, the defen-dant may at that point [appeal]. .. .71

If the child is adjudicated delinquent and com-mitted to the department of youth services, he can-

At./.:.

1.14.%. (*Ben 1..ms Ann t 119, ti 56 rtiupp P)'.! ).7" M.1%. ticti 1..4%. Ann. c 119. § SS c Supp. 19-2).1.1 Ring And Rflsotteld, thpu note 27, at R5.

37

not be placed in a jail, house of correction, or statefarm, if he is under

If the complaint on which the child was adjudgeddelinquent alleged that "a penal law of the com-monwealth, a city ordinance, or a town by-law hasbeen violated," then the c liild may be committedto the custody of the commissioner of youth ser-vices, instead of the department." The commis-sioner is authorized to place the child "in thecharge of any person"; the department of youthservices is to provide "for the maintenance, inwhole or in part, of any child so placed in thecharge of any person:" If "at any time" after theplacement the child "proves unmanageable," thecommissioner can

transfer such child to that facility or training schoolwhich in the opinion of said commissioner. afterstudy, will best serve the needs of the child, but notfor a longer period than until such child becomestwenty-one."

If the child is adjudged delinquent "by reasonof having violated any statute, by-law, ordinanceor regulation relating to the operation of motorvehicles," there are four possible dispositions. Thecase can be filed, the child may be placed on someform of probation. or he may be committed to thedepartment of youth services. These three alterna-tives exist under regular delinquency proceedings.The fourth alternative is simply to fine the childup to the maximum amount of the fine authorized

for the particular violation.' The statutes aresilent on the procedural requirements for disposi-tional hearing. In most cases, although counselis present, dispositional hearings are very informal

in character.

Irditer to criminal court. Waiver (in theform of dismissal and referral for trial as an adult)

takes place after the ( adjudicatory ) hearing on thecomplaint, but before and instead of a finding by

72 14C. 601. Laws Ann. c. 119. § I two 1.7" Mass. Gen. Laws Ann. c. 119. § Sx t SUM, 19-271 Ibid.

7" Ma''; Mao:. Gen. taws Ann. c. 119, N SM ( Sum. 19 '2 ).

the court. Waiver to criminal court requires threepreconditions:

I ) the complaint must allege **an offenseagainst a law of the commonwealth," or a viola-tion of "a city ordinance or town by-law";

2) the offense was committed "w hilt: thechild was between his fourteenth and seven-teenth birthday"; and

3) "the court is of the opinion that the inter-ests of the public require that he should be triedfor said of or violation, instead of beingdealt with as a delinquent child." "

No criminal proceedings can be brought againsta person who violates a law before his seventeenthbirthday -unless proceedings against him as a delin-quent child have been begun and dismissed" asprovided above tor unless they arc for motorvehicle violations ).'t

District court rules require that:

In every Lase where the court shall determine thatsuch a child should he tried for an offense or viola-tion [that is, in adult court], instead of being dealt

sth as a %,..qm.ard.4 )1. a delinquent child, such child,/,./1/ be represented by counsel.:"

It is nor dear whether this requires counsel at thewaiver hearing or whether it means that, as adefendant in adult court, the child must havecounsel ( unless he elects to proceed without anattorney as an adult defendant may do)."

A child who is waived to adult court is to betried before the superior court, not the districtcourt. The trial is to be conducted "in the samemanner as any critninal proceeding," and if con-victed, he can be sentenced or placed on probation,with or w ithout a suspended sentence.' However,if the child has not turned 18 prior to his convic-tion or guilty plea.

the sciperi4,r cort may, in its discretion, and in lieuof a ju,Igment t.f conviction and sentence, adjudicatesuch person as a delinquent child. and make such

Mi., C,.nCu 'Att.,. Ann.,. 119, g i 11'1(04.7' NI.ts% (tt.14 Amt. t !I.). i'V)).

1.1%, 1)1.m, r ( ,,urt Rule sS I').1 1)Irri, -lin Rule '9 419-2.i.

1.1. (nil. I KA. Ann 119. 1i "*.' `411'1"

38

disposition as may be made by ... the Boston juve-nile Court . . . ; but no person adjudicated adelinquent child under the provisions of this sectionshall, after he has attained his eighteenth birthday,be committed to the department of youth servicesor continued on probation or under the jurisdictionof the court.

I I. Appal. A child has the right to appeal hisadjudication as either a delinquent or a waywardchild to the superior court. He can appeal eitherat the time of adjudication or at the time of theorder of commitment or sentence. At both times,the child must be notified of his right to take suchan a: eal,"

An appeal to the superior court results in atrial de nom with the full panoply of rights towhich an adult defendant is entitled:

ET] he appeal, if taken, shall be tried and deter-mined in like manner as appeals in criminal cases,except that the .trial of said appeals in the superiorcourt shall not be in conjunction with the otherbusiness of that court, but shall be held in a sessionset apart and devoted for the time being exclusively

to the trial of juvenile cases. This shall he knownas the juvenile session of the superior court andshall have a separate trial list and docket. . . . In

any appealed case, if the allegations with respectto such child are proven, the superior court shall

not commit such child to any correctional institu-titm, jail, or house of coffer ion, but may adjudicatesuch child to be a wayward child or a delinquentchild, and may make such disposition as may bemade by a [juvenile] court...."

As a result of a recent decision by the SupremeJudicial Court of Massachusetts,' the child onappeal to the superior court for a trial de novo hasa right to a trial by jury.

Statute also permits the adoption of rules, inconcurrence with the superior court and the BostonJuvenile Court, to provide for appeals from delin-quency and wayward adjudications "in any districtcourt in Suffolk County or in the Boston Juvenile

%-..!

nevi. Gen. I..tws Ann. t. 119. Rf 5() ( Supt,. 19-2).167d.

P.5 Curnm.,riu Laid, r T11,47.71. .!7.9 2d .2"" Adv.

Sheets -21 1 19'1 t.

Court- to be made to the Boston Juvenile Court.Appellants may cl.kirtl a jury of twelve if they wish.

If the defendant wishes to appeal from the trial by

jury in the Boston Juvenile Court, statute permitsthe appeal to go directly to the Supreme judicialCourt by any ut the usual appeal routes to the Sy:from a superior court jury trial.'"

C. CASELOAD IN THE BOSTONJUVENILE COURT: 196 2 4 971

During the ten years from 1%2 to 1971, thecourts caseload has inc reased by approximatelyI 10r; ( from 969 to 2,032 ) ( see Table 1 ) . Onemajor reason for this substantial increase is thatthe Boston Juvenile Court in 1966 assumed juris-diction over juvtoile cases heard in the RoxburyDistrict Court. This increased the court's caseloadby over -fOr; between 1965 and 1966. The court'scaseload o %er the List four years of the period( 1968 through 1971 ) has remained fairly con-stant. In fact, the caseload in 1971 ( 2,032 )actually represented a decrease from 1969 ( 2,099 ).

TABLE 1.Boston Juvenile Court Caseload from1962 -1971

Year

1962

Caseload

969

Percent change

increase over previous

or decrease year

(Percent)

1963 1075 increase 106 + 10.91964 680 decrease 395 36.7

1965 1184 increase 504 + 74.1

1966 1660 increase 476 + 40.2

1967 1724 increase 64 + 3.9

1968 2004 increase 280 + 16.2

1969 2099 increase 95 4.7

1970 2029 decrease 70 3.3

1971 2032 increase 3 0.1

1962 1971 increase 1063 109.7

D. INTRODUCTION ANDMETHODOLOGY

As one of the oldest independent juvenilecourts in the country, the Boston Juvenile Courthas achieved considerable respect as a court with

t..m. Ann. c. 11'). g 5G '

39

high commitment to the treatment and rehabilita-tion of juveniles and to the protection of juveniles'legal rights. In r,:cent years, the court has movedincreasingly toward the adoption of a full adver-sary model for the adjudication of juvenile offenses

and, through the efforts of its presiding justice, hasencouraged the active participation of legal counselfor juveniles. Presently, defense attorney represen-tation in the Boston Juvenile Court equals orexceeds that of any juvenile court in the country.Yet, in spite of the very widespread involvementof lawyers to represent juveniles, there has been nocorresponding increase in the use of attorneys torepresent the state. Like Massachusetts' districtCOWES, which have always made extensive We ofpolice prosecution. the Boston Juvenile Court usespolice officers, exclusively, in the prosecution of itscasts. In this regard, the Boston Juvenile Courtstands with the small minority of big-city juvenilecourts which still do not utilize professional prose-cution (see national survey, reported suPret). Thetremendous gap between the amounts of attorneyrepresentation which is available to juveniles andthat which is available to the state makes the Bos-ton Juvenile Court unique in the extent of itsimbalanced adversary setting. It also provides anexcellent opportunity to examine the question ofjuvenile court prosecution from the perspectiveof a juvenile court which is very much inclinedtoward the full integration of lawyers in the adjudi-catory process but which is hampered in theachievement of that end by the long establishedtradition of police prosecution.

One other consideration should be kept in mind.The Boston Juvenile Court lacks any intake screen-ing mechanism for the informal adjustment ordiversion of cases before a hearing on the facts The

absence of in-court adjustment procedures placesgreater power in the hands of the police in con-trolling the flow of cases than they might otherwise

have. In examining the opportunities and needs foradjustment and diversion procedures in the BostonJuvenile Court, the limitations of police prosecu-tion assume critical importance.

All docket entries and court papers relating tothe court's 1971 caseload were examined and datawere recorded to facilitate electronic: analysis. Daily

observations were conducted of Boston juvenileCourt proceedings during a six-week period inAugust and September of 19-2. All ourt observa-tions were conducted by a single individual whowas permitted to take notes in the courtroom.Standardized data collection instruments were used.Observations were conducted for an average ofthree and one-half hours each daythe normaltime which the court was in session. No attemptwas made to follow individual defendants througheach stage of the proceedings although this fre-quently happened by chance. During this period,49 arraignments involving 99 charges, 87 adjudi-catory hearings involving 102 charges and 91 dis-position inquiries involving 101 charges wereobserved. In addition to the numerous informalconversations which were held with court personneland others, lengthy interviews were conducted withthe court's presiding justice, chief clerk and chiefprobation officer. In addition, interviews were con-ducted with other court personnel, police prose-cutors and members of the Massachusetts DefendersCommittee. In all, interviews, lasting between Iand 2 hours each, were conducted with 20 indi-viduals. Two interviewers were present at eachinterview and extensive verbatim notes were taken.

E. PUBLIC DEFENDER SERVICESIN THE BOSTON JUVENILE COURT(OVERVIEW)

The Massachusetts Defenders Committee pro-vides statewide public defender services to indigents

in criminal and juvenile proceedings. Since July1965, the Massachusetts Defenders has assignedat least one lawyer to represent juveniles in theBOston Juvenile Court and, in each year since itbegan its work in the court, has represented anincreasing number of juveniles. During 1966, itsfirst full year of service in the Boston JuvenileCourt, the Massachusetts Defenders was assigned

511 cases. By 1969, its caseload had more thandoubled to 1,164 cases and its total caseload for1972 is believed to exceed 1,400 cases."' Althoughprivately retained counsel occasionally appears inthe court and some cases are still assigned to mem-bers of the private bar, the Massachusetts DefenJershas clearly emerged as the court's dominant defensecounsel resource, representing the overwhelmingmajority of juveniles who do receive defense coun-sel assistance.

However, until very recently, the increasing case-load carried by the Massachusetts Defenders wasnot matched by a corresponding increase in thenumber of attorneys assigned to the Boston Juve-nile Court and the annual average number of casesper defender swelled from 340 in 1966 to 649 in1971. By early 1972, caseload pressures hadassumed crisis proportions, when the meager num-ber of two defenders who were assigned to thecourt in 1971 was further reduced. A panel of theNational Legal Aid and Defender Association,which was conducting a general evaluation of theMassachusetts Defenders Committee, found that inJanuary 1972, only one defender was assigned tothe Boston Juvenile Court."

The report, which was highly critical of theMassachusetts Defenders Committee and its leader-ship, found that in the Boston Juvenile Court,the role of the public defender "is not generallyunderstood or well defined." The report wenton to state, -The hulk of the MDC attorney's timeis spent in court, representing clients at delinquencyhearings. No pretrial motions are filed, no investi-gation of the facts is performed, no witnesses aresecured unless by the client himself and interview-ing takes place in a vacant courtroom or office onthe day the client's case is to be heard."

° The panel

recommended, among other things, that at leasttwo attorneys plus an investigator should be

'41 These figures were compiled and furnished by the Mass-achusetts Defenders Committee.

"NatiemAi Legal Aid and Defender Assusiation. Eta/Nat/Ha

ROW? FM the Malutaburetts Daimlers Criminal:sae (19'2)." IL At 1.

PH Ibid.

40.

assigned to the Boston juvenile Court ( a verymodest proposal that additional training shouldbe provided: that more extensive pretrial investi-gations and interviews should be conducted; andthat prehearing placement alternatives and post-adjudicative dispositional alrernatis CS be developed

and pursued.'"

In mid-1972, the Massachusetts Defenders, bow-ing to its untenable caseload, withdrew its servicesfrom the district courts of Massachusetts and reas-signed its personnel to the remaining courts whichare served by the Defenders. In so doing, the De-fenders was able to increase its manpower in theBoston Juvenile Court to five or six attorneysbyfar the largest number of public defenders ever toserve in the court. With this number of defendersavailable to provide representation, the caseloadfor each defender since July 1972 would probablybe well under 300 cases a year, a considerableimprovement over previous years. It should also bementioned that the Defenders came under newleadershir in the summer of 1972 with the appoint-ment of a new chief counsel.

As indicated earlier, our observations in the courtand our interviews with defenders took place somemonths after the Massachusetts Defenders increasedtheir manpower in the Boston Juvenile Court and,therefore, reflect conditions as they currenly exist.Unfortunately, hmsever. the criticisms which wereleveled at the Defenders by the N.L.A.D.A. priorto the assignment of additional attorneys appearedto be applicable during the period of our review.Poor case preparation, lac kadaisical defense effortsand an absence of effective participation at disposi-tion continue to mark the work of the public defend-ers in the Boston Juvenile Court. In spite of thesubstantial reduction in their caseload, the presid-ing justice has not discerned any appreciableimprovement in the quality of the defenders' per-formance. Even the Defenders' new general counselsuspects that a mere increase in attorneys wouldnot. by itself, result in a significant change in thequality of representation. It is his view that changes

id. at -(.

in the attitudes of public defenders must Occurbefore any improvement in the quality of theirwork will take place.

Prominent in the thinking of public defendersin the Boston juvenile Court is the view thatnothing really had" happens to most of the juve-

niles who appear before the court. To some extent,the defenders seem to have incorporated the atti-tudes of many of their clients, who seem to believethat any disposition short of committal to an insti-tution is equivalent to "beating the rap." Moreover,the defenders perceive the court and its personnelas essentially benevolent and committed to the bestinterests of juveniles. The Boston Juvenile Courtis unique among the lower courts of Massachusettsin inspiring such confidence among public defend-ers and undoubtedly reduces the L'Aversary zealwhich they display in the court. "There is lesspressure in the juvenile court. You know a kidwon't get committed on a first offense . It wouldbe dishonest to say that you. don't sometimes getlazy because you know they'll just continue withouta finding and you can avoid a long trial. I try tofight against getting lazy." Also, there is an over-riding belief among the defenders that the vastmajority of juveniles whom they represent areguilty of the charged offense and in necd of somekind of treatment or supervision. "By the time he!the juvenile} gets to court he doesn't need alawyer, his problems are so deep. I can help himbeat the case, but if the kid is really in trouble,that doesn't help him." Finally, the traditional prac-tice among public defenders in Massachusetts hasbeen to use the lower courts as a stepping stoneto trial in the Superior Court. Because a defendantcan "appeal" a district court conviction and receive

a full, new trial in the Superior Courtwhich isconsidered a much better forum for contesting acaselittle adversary effort is "wasted" in lowercourt proceedings. "Our orientation is that triable

cases get tried in Superior Court." However, incommenting on the very low number of caseswhich are appealed from the Boston JuvenileCourt, one defender stated: "If you lose a case, you

41

don't feel quite as bad as losing an adult althoughyou still fed very bad. . . . On the same factst.would be less likely to think about appealing inthe Boston Juvenile Court than in the districtcourt. Maybe it's just as well that the kid be super-vised; he might stay out of trouble the next time.-

In truth, most defenders are uneasy in the juve-nile court and would prefer to be elsewhere. Whilethey respect the court, they have not defined a rolefor themselves within it. One defender has referredto hit; presence in the court as "irrelevant." Anotherdefender feels tha "the lawyer is less a part ofwhat's going on [than in criminal courts], especially w ith regard to disposition. There is muchmore of a social work/probation atmosphere."Even the very small number of defenders whoexpress a long-range interest in juvenile represen-tation seem unable to translate that interest intoeffective action in the court. Although the provi-sion of competent defender services is dependentupon a wide variety of influences and not easilyachieved through any single approach, there isreason to believe that the present system of prosecu-tion in the Boston Juvenile Court may inhibit thedevelopment of a more productive defense effort.This issue will be taken up in subsequent sectionsof this chapter.

F. POLICE PROSECUTOR SERVICESIN THE BOSTON JUVENILECOURT (OVERVIEW )

Nine police officers are used to provide mostprosecutorial services in the Boston Juvenile Court.Eight are juvenile officers assigned to the threedistrict police stations which cover the area in Bos-ton falling within the jurisdiction of the BostonJuvenile Court. They generally spend the morningsin court prosecuting cases which arise out of theirrespective districts and the latter portion of theday in performing their regular responsibilitiesas juvenile officers in their districts. A police ser-geant, attached to headquarters, has overall super-visory responsibility for police prosecution in thecourt.

42

In theory at least, all arrests of juveniles in aparticular police district are screened and processedat the stationhouse by a juvenile officer who, if thecase is not adjusted at the polio station, will sub-sequently prosecute the case in cc,urt. Although thejuvenile officers have primary responsibility forhandling juvenile cases, includiag their prosecu-tion, it is not unusual to find the officer who madethe arrest also conducting the prosecution. Thissituation most frequently occurs when the arrestis made on a late shift when the juvenile officersare not on duty, when time pressures do not permitthe regular juvenile officers to prosecute all pend-ing cases from their districts or when the arrestingofficer succeeds in convincing the sergeant that heshould be allowed to prosecute. Juvenile officersmay also prosecute cases on which they were thearresting officers.

For the most part, the juvenile officers whoprosecute in the Boston Juvenile Court have con-siderable experience in handling juvenile matters.They tend to be seasoned veterans of the force withmany years of service behind them. Unlike thepublic defenders, the police prosecutors display noambivalence or discomfort concerning their workin the juvenile court. Although none of the prose-cutors have had any formal legal training, they

feel that they are well equipped to perform theirduties as juvenile court prosecutors. While a smallnumber of police prosecutors ( including some ofthe lest) fed that the introduction of attorney-prosecutors is inevitable as a result of the increasingcomplexity now found in many juvenile proceed-ings, as a group, the police prosecutors are confi-dent of their ability to provide capable prosecutorialservices in the court and to meet the public defend-ers on an equal footing. "Most young attorneyscoming out of law school think the police areincompetent. Then they go into court and get theircars knocked off."

To the juvenile officers, prosecution is an exten-sion of their work as policemen and they approachtheir role as prosecutor accordingly. They regardtheir function in the court as limited to an "objec-

tivc" presentation of the government's evidence.As police Accts, they do not believe that it istheir responsibility to advise the court on mattersof disposition or to assume any discretionary author-ity after the complaint has been filed. The court

col .i!' a sstcot (IMpt tSkli of wp.u--

ate authority hierarchies and sharply defined divi-sions of responsibility. There is little room, inclina-tion or authority for the assumption of a broaderrole in the court. In all matters calling for discre-tion, they express the convic tion that the court andits personnel will 'do the right thing" without theadvice of the police prosecutor.

The juvenile officers take visible pride in theirwork a, pro cc WON and in the association with thecourt. They frequently cite the court's "no-non-sense" approac h to the protection of juveniles'rights and its insistence upon the observance oflegal formalities. They credit the trial and errortraining %%1101 they nave received in the BostonJuvenile Court with improving their work inscreening cases and preparing complaints and rais-ing the level of their prosecutorial skills.

However, while they praise the court and its per-sonnel, the juvenile officers show little optimismconcerning the court's ability to bring about a con-structive (Lange in the lives of most of the juvenileswho appear before it. On the one hand, the neces-sary rehabilitative services which many juvenilesrequire are not always available to the court.. On theother, they allege that the recent efforts of theDepartment of Youth Services to move toward adecentralized system cif community based correc-tional facilities has diluted the court's effectivenessin dealing with hard core offenders who requireconfinement ( or the threat thereof ) in a secureinstitutional environment. They are, therefore, dis-posed to adjust as many minor cases as they canwithout court referral and frustrated with theirinability to invoke the kind of disciplinary actionwhit h they claim is required with some juveniles.

G. PRE-ADJUDICATION

Approximately one-half of the juveniles who

43

are officially processed by the Boston Police Depart-ment are referred to juvenile court. The remaininghalf are issued warnings and released to theirparents." Official warnings are issued to first offend-ers where it appears, after an investigation by thejuvenile officers. that the parents can exert what-ever disciplinary action may be warranted. TheJuvenile Aid Division pursues this policy in orderto avoid the unnecessary stigmatization of juvenileswho are nor likely to engage in delinquent behavioragain. Of course, an additional number of juve-niles are adjusted on the street without the issuanceof a formal warning. juvenile officers say that theyscreen and adjust juveniles "as a matter of neces-sity." The absence of any intake adjustment processin the Boston juvenile Court makes court refer-rals inappropriate in the majority of cases. Forthis reason, referral to the court is treated as a lastresort. In deciding which cases to refer, juvenileofficers consider the type and seriousness of theoffense and the degree to which the parents can bea positive influence in disciplining the juvenile.Cases involving violence are almost always referredto court. On the other hand, minor altercationsbetween juveniles, school complaints, stubbornchildren and runaways are among the kinds of caseswhich the police routinely attempt to St men outPolice do not generally consult with probatii.'staff in making referral decisions, although theymay contact probation to determine whether thereare any outstanding warrants on the juvenile.

Juvenile officers cited the frequent difficultywhich they encounter in attempting to adjust casesat the police station. The police do not assumeresponsibility for refusing to refer a child to courtif the victim insists on prosecuting. They arc, there-fore, powerless to adjust many cases which theymay feel do not warrant court action. Among theseare the large number of petty shoplifting caseswhich the court hears. ( Retail establishmentsin downtown Boston have insisted on prosecutingall shoplifting cases, both as a deterrent measure

Hi Aff ,n ['take DpArtmnt. Poi uric. .11.1

p.,rt 19-19. Pa.

and as a protection against law suits for falsearrest. )

In adjusting cases, juvenile officers do notattempt to refer juveniles to treatment facilities orprograms even if they appear to need help. Thisdecision is left to the parents. Juvenile officersstate they would not wish to be responsible forany harm -.hat might tome to a child as a result ofan ill-advised referral.

A child's parents are contacted immediately afterhe is taken into custody. The police often questionjuveniles prior to the arrival of their parents atthe police station even though their statementswould not be admissible. The court will not accepta waiver of the juvenile's ittiranda rights unless itis made in the presence of the juvenile's parentsor attorney.

If the juvenile officer decides to refer a case tocourt. he may release the juvenile to his parentson that they ensure his presence in the court on thefollowing day. A summons or warrant is not gen-erally issued unless the juvenile fails to appear incourt at the appointed time. If not released to hisparents, the juvenile may be brought directly tocourt from the police station by the juvenile officer.

Pre-arraignment detention determinations aremade by a probation officer echo is available to thepolice on a twenty-four hour basis. If a juvenileis taken into custody after normal court hours,the probation officer is contacted for his decisionregarding the juvenile's detention. ( It is estimatedby the chief probation officer that eighty to ninetypercent of juveniles who are taken into custodywhen mutt is not in session are released to theirparents. If detained. juveniles are brought tocourt on the tollinving day for arraignment.

Historically, judges in the Roston Juvenile courtpersonally approved each complaint that was filed.This not only represented a huge drain on thecourt's time but also placed the judges in theundesirable position of having to hear at adjudica-tion c ases founded upon complaints which they, orother judges of the court, had previously reviewedand approved. However, following the appoint-

44

mean of the present presiding justice, the authorityto approve complaints for filing was delegated tothe court's clerk. Now, all applications for com-plaints must be made to the clerk. If the applica-tion is approved by the clerk, the complaint isdrafted by a member of his staff. The absence ofany intake apparatus for screening and adjustingcases without court action leaves the clerk withconsiderable control over the number and type ofcases which go forward for judicial action. Oncea complaint is approved by the clerk, the case goeson to arraignment and the formal adjudicatory

process is begun.

Applications for a complaint are prepared by apolice officer either at the police station or in theclerk's office. Upon submission of the applicationto the clerk, he conducts an inquiry to determinewhether a complaint should be issued. The clerk,who is an attorney, examines the application andquestions the police officer and any other witnessesto ascertain whether there is sufficient evidence tosupport the requested complaint. Witnesses arerequired by the clerk to be present at this inquiryunless there is good and sufficient reason" for his

absence (e.g., illness).The clerk does not ordinarily issue complaints

on the application of private citizens. When aprivate citik.en comes directly to the court to com-plain against a juvenile, the clerk refers him to theappropriate juvenile police officer for further

investigation and screening, if necessary. Generally,the clerk will not file a complaint without the

prior endorsement of a juvenile officer. Although itis not strictly required by statute, the clerk guideshis approach with the view that "the common-wealth is [or should be] a party to every action"and insists upon the concurrence of a juvenile offi-

cer before considering an application for a com-

plaint. Many of the cases which the clerk refersto the juvenile officers are informally adjusted by

them and no complaint is subsequently sought.Thus, the role of the police in the pre-court screen-ing of cases in indeed extensive. In fact, as shown

in Table 2, almost no complaints are filed in the

Boston juvenile Court without approval of thepoke as well .t the c Jerk. In 1971, the Bostonpolice were on the complaint in almost ninety-fivepercent of all referrals resulting in complaints.Transit and housing authority police and schoolattenclan: c oflic ers cr on an additional li per-

TABLE 2.Complainants in the Boston Juvenile Court(1971)

Complainant Number Percent

1160 (57.1)Private 14 (0.7)Parent 4 (0.2)Police/private 442 (21.8)Police/parent 113 (5.6)Store/police 197 (9.6)School attendance officer 35 (1.7)Housing police 4 (0.2)Transit authority officer 55 (2.7)Transit authority/private 8 (0.4)Total 2032 (100.0)

cent of complaints filed. Private persons were thesole complainants in fewer than one percent ofall approved complaints.

Court screening procedures have accounted fora remarkably low number of unapproved com-plaint applications. In the years from 1965 to1971, the highest percentage of unapproved appli-cations was 6.2 r; in 1966. In 1971. the raw fellto 3.5 r; ( Table 3 ).

Of those complaint applications which did notgain the clerk's approval in 1971, approximatelyhalf were "not approved" on the initiative of theJerk. while almost all of the others were "not

approved at the request of the poke" ( Table i ).Relationships between the clerk and the juvenile

officers reflect expressions of mutual respect andshared values. The clerk attributes the low rate ofrejected complaint applications to the experienceand professionalism of the juvenile officers. Thepolice cite the high standards which the clerkemploys in screening complaints. As in their associ-

ations u ith tither phases of the court process, thejuvenile officers take pride in their ability to per-form successfully under close scrutiny.

Where the evidence is flimsy or the reliability

45

of a witness is in serious doubt, the application maybe rejected by the clerk or withdrawn by the police.Disagreements between the clerk and the policeregarding the merits of a requested complaint

TABLE 3. Complaints in the Boston Juvenile Court(1965-71)

Year Not approved Approved Total Not approved

(percent)1965 65 1184 1249 (5.2)1966 110 1660 1770 (6.2)1967 70 1724 1794 (3.9)1968 89 2004 2093 (4.3)1969 82 2099 2181 (3.8)1970 93 2029 2122 (4.4)1971 85 2314 2399 (3.5)Total 594 13.014 13.608 (4.4)

TABLE 4. Complaints Not Approved (1971)

Notation on complaint Number Percent

-Not approved" 44 (52.4)-Not approved at request of police" 35 (41.6)

"Not approved at requestof complainant" 4 (4.8)

**Lack of prosecution" 1 (1.2)Total 84 (100.0)

undoubtedly do occur from time to time. Somepolice officers did suggest that the clerk may heoverly cautious in granting certain types of com-plaints: "Some things arc more difficult to getacross to the clerk than others. Disorderly person,for example, is a catch-all; but this kid wouldn'tbe charged with it if he weren't harassing some-one." Disagreements over specific complaints tendto he muted and contained. Although the juvenileofficers can obtain a review of a complaint rejectionby petitioning the court, this is rarely, if ever, done.In the first place, it is highly unlikely that manyserious offenses are screened out over the strongobjection of the juvenile officer or of the victim.Second. police arc extremely reluctant, in all oftheir functions within the court setting, to makeand to argue for their own discretionary judgments.Third, their view of the court as a compartmental-ized system with sharp divisions of responsibilityand authority militates against circumstances which

draw them into formal conflict with court per-sonnel. And finally, juvenile officers resist takingofficial positions which are in seeming conflict withtheir avowed "second chance" approach to juve-niles. ( "Yes, we can go to the judge for review,but we don't. These are juveniles; were not out tohurt them." )

There is wide agreement among public defen-ders concerning the high quality of complaintdrafting in the court. Defenders, who receive copiesof the complaint and the application. all attest tothe technical competence of complaint drafting.In our observations of the court for a six-weekperiod, only two instances of defective complaintswere observedboth involving inaccuracies inentering the name of the juvenile. Public defendersmaintain that it is very rare to find a defect in aLcanplaint.

Although the primary function of court sown-ing procedures is to reJute or eliminate legallyinsufficient complaints, there is indication that itis also used as a very limited mechanism for theadministrative adjustment of cases which may belegally sound but which do not appear to warrantcourt at tion. The clerk acknowledges that he con -siders -all fat tors" regarding the best interests ofthe child and the community. In minor. "victim-less" offenses where the juvenile does not appearto pose a threat to the community and sufficientparental supervision appears to be available, anapplication may be withdrawn. Obviously, thecooperation of the juvenile officer is essential and,

here there is a victim, his consent is crucial.

Some juvenile officers may also use the prepara-tion of a tomplaint application as an extension ofthe stanonhouse adjustment pox ess. One officerstated that he occasionally completes a complaintapplication at the police station and brings thejuvenile to court in order to exert additional psy-chological pressure. If he feels that the trip to theourt has duly impressed the youngster with the

possible consequences of his continued misbe-havior. he w ill request that the application be

ithd raw n.

46

In terms of the total number of court referrals,administrative adjustments of the type describedabove are negligible, constituting no more thanone or two percent. They are rare exceptions to thenormal processing of referrals. For all intents andpurposes, no significant number of juveniles areadjusted or diverted as a result of the court'sscreening practices.

A separate complaint is filed for each chargewhich is brought against a juvenile. The initialdecision concerning the number of charges and thedesignation of charges to be brought against ajuvenile when his conduct gives rise to multipleviolations is made by the police officer. Uponreview by the clerk, any or all of the charges maybe dropped. While the charging decision in juvenilematters does not have the same level of importanceas it may have in a criminal proceeding, where thejudge's sentencing alternatives are related by statuteto the specific charges which result in a conviction,they can have a serious bearing on the outcomeof the case. First, "shot gun" charging practicescharging every conceivable offense arising out of asingle act of misconductmay be used in an effortto camouflage an essentially weak case. It may be

hoped that sufficient evidence can he produced atthe hearing to support a finding of delinquencyon at least one of the charges. Second. "shot gun"harging may reflect an attempt to impress the

court with the seriousness of the juvenile's mis-conduct. In "throwing the book" at a juvenile, thepolice officer may be seeking to elicit the most puni-tive disposition available. He is, in fact, informingthe court that, in his view, the juvenile is beyondredemption and not worthy of a second chance.Finally, both bail and bind-over decisions may beinfluenced by the scope of charges which arebrought against a juvenile.

During 1971, 2,31.1 complaints were filedagainst the 2,032 juveniles who appeared in thecourt, resulting in an average of 1.1 charges perjuvenile. This very low charging rate reflects wellupon the court's screening practices and is con-firmed by the experience of defense counsel and

.1

other partic ipants in the court prokess."

There is little es idens c tt excessive charging inthe Boston juvenile Court. Neither the couresrecords nor Our observations and interviews wouldsupport the cont. lusicm that unwarranted multipleLharging is a serious problem. In the vast majorityof cases. juveniles are brought to court on a singlecomplaint. Although there may be instances whichsuggest a punitive Appft 41l11 in charging by policeofficers (one juvenil officer reported seeing a casein which thirty-five charges were brought againsta juvenile 1. this practice is not common. If any-thing, the juvenile officers tend to look down at%clung arresting officers who, through lack ofexperience in dealing with juveniles, may reactemotionally to juvenile misconduct. As one of themore (Apt:tier), ed juvenile officers put it: -Whatdo vou gain by tiling multiple charges on a juve-nile:4We try to explain this to the arresting officers:many of the new ones don't understand it." Hewent on to describe an incident in which two inex-perienced officers arrested a young boy and a minorscuffle resulted. -They want to charge the kid withassault and battery on a police officer. I look atthe kid and I look at them and I tell them I'd beashamed. There's no point in that."

Discussions with the public defenders supportthe conclusion that juvenile officers do not oftenrefer petty cases to the court: -I think it has some-dung to do with the fact that the Boston policeare. on the average, older than in other cities.Y,iung cops don't know how to use 'lower; theyget exc ited. Older cops forgive a lot. They wantthe kid to straighten up. They know he'll he hackif he doesn't.- Of greater importance. perhaps. isthe fact that the juvenile id( ors prosecute nest ofthe complaints which they process. The presidingjustice has made it abundantly clear that he willnot tolerate "junk complaints- and it isdoubtful if any juvenile officers would consciously

" In tht ,scent %Nil% id six t wets in the14, mil in ores, 142ttg: th.it thy .ort4y.t,lctcn lint is i.vcc t runt:. 1 v4j1,1; ,f

tt, ti .,er r:trarmi I -rid, ,.f .11( tr

1:S 19'0,

47

risk the court's displeasure by submitting cases ofthat variety. The almost daily contact which thejuvenile officers have with the court in their capac-ity as juvenile prosecutors makes them acutelyaware of the courts philosophy. Their pre-courtst reeving criteria are. therefore, a direct 'reflectionof the court's own standards.

It is highly unusual for a iurcnile to appear atarraignment accompanied by an attorney. Thisoccurred only two times in eighty-nine arraign-ments which were observed. One juvenile who wascharged with prostitution was represented byretained counsel and, in the other case, a juvenileappeared with a Boston Legal Assistance Projectattorney who had represented him in a previouscase.

At the arraignment, the juvenile is informed ofthe charges against him and of his right to counsel.A public defender is assigned if the juvenilerequests representation and the data compiled bythe probation stall indicate indigene y. As a matterof practice, however, counsel is automaticallyassigned in serious cases and no juvenile whowishes to be represented will be denied counsel.Although juveniles had a right to counsel in theBoston Juvenile Court prior to the amit decisionin 1967, many juveniles waived counsel and suchwaivers were commonly allowed by the courtexcept in cases involving children below the ageof twelve or where the charge involved a seriousfelony. Hcm ever, since amit. the court has dis-couraged waiver of counsel and permits them in avery limited number of cases. Parental consentmust also be obtained. In shoplifting cases. onejudge routinely inquires of the probation Ai( erwhether the juvenile has a prior record. If none isevident, he requests that a public defender conferwith the child and parents to advise them of thejuvenile's right to be represented by counsel andto inform them that they may proceed immediately

to the hearing if they chose to waive counsel. Fre-quently, the judge will tell the juvenile and hisparents that he will continue the case without afinding if they chose to proceul at once. Virtually

all of those who are offered this opportunity acceptand sign the waiver whit h is treated as an admis-sion. The public defender is requested to remain

in the courtroom "so that the integrity of the courtis not impugned." The police prosecutor sumsup the case in two or duct: sentences; the judgemakes a remark to the defendant about stayingout of trouble, and the cast: is continued withouta finding for three or six months. The defendant'stune in the courtroom is about five minutes, onthe Avrage.

In contrast, another judge treats all cases thesame, including the pettiest shoplifting. At arraign-ment, the right to counsel is fully explained, and

defendant and parent arc asked if they wantcounsel. It neither indicates that they do, counsel isappointed, unless the family can afford to pay forprivate counsel, which is rare. The judge alsorequires the prosecutor at arraignment to sum-marize the evidence against the defendant.Although we have never seen the judge dismissa caw at arraignment, this procedure approximatesan inquiry into probable cause. since he requiresthe prosecutor to demonstrate that he will comeforth with evidence for the conclusions stated inthe complaint. The case is then continued for ahearing, usually in a week's time.

In all, less than twelve percent of juveniles waivecounsel t Table 6. infra) although, in the opinionof the prestcling justice, as many as 50 percent ofall juveniles would agree to waive their right tocounsel if the c mat encouraged or allowed 'oaths.riminant aivrs. No juvenile who waived counsel

Was subsequently bound-over for trial as an adultTable rsrfr,t ) or was committed to the Depart-

Merit ot Youth Services.The question of detention is also raised at

arraignment. No case was obscrv"d where a childwho had been released by the police was subse-quently detained by the judge. Therefore, the

ision by the police and probation Aker whenthe child is first arrested seems the primary factorin all bail/detention questions that are later raised.The great majority of juveniles who are arraignedare released in the c are and c ustncly of their parents.

The bail/detention issue is most important for theminority of defendants who were detained afterarrest. In the vast majority of these cases, the public:

defender is appointed at the arraignment, but thepublic defender is, of course, severely handicappedby having no knowledge of the defendant or thecase. Defense counsel made an argument on thebail question in fewer than ten percent of all casesobserved in which bail was set. The argumentswere generally perfunctory. For example, a femalecharged with attempted larceny had hail set atSI,000. payable only by her parents. Defense men-tioned that the juvenile had never previously failedto appear at a court hearing and requested that shebe released to her mother. The judge examinedher extensive prior record, and remarked that shewas lucky that he hadn't set a higher figure. Thedefender made no reply. Juveniles have a right tobail review but that right was not exercised in anyof the cases which were observed.

Approximately two-thirds of all juveniles arcreleased in the care and custody of their parentsor on their own recognizance ( less than three per-cent) without bail. In about one-third of all cases,money bail was set. In 1971, three juveniles weredeta.ned without hail. Over one-third of all hailwas in amounts of $100 or less while almost one-quarter of all bail set was in amounts in excess of$1,000 ( Appendix C, Table 3 ).

Bail was posted in 7() percent of those casesfor which hail was set. Considerably under tenpercent of juveniles in the Boston Juvenile Courtare detained after arraignment for failure to postbail. Curiously, the higher the amount of bail,the redter is the likelihood that bail will be posted.

For example. in cases where bail was set at S5()

or less, more than 5O did not post hail: in caseswhere bail was set between $50 and $250, about

214r; did not post bail; in cases where bail was set

between $250 and $1,000, did not post bail,

but in cases where bail was set above $i,()00, only

6r1 woe not ably to post ( Appendix C, Table 1).This may be explainable by the court's use of

"parent only" bail. In many instances where the

court wishes to ensure that proper care will be pro-

vided to the juvenile if released from detention. itsets fail w hit 11 is acceptable only if posted by aparent. In the case of runaways. which constitutea disproportionately large percentage of bail cases( Appendix C. 'FANO 1, and other juveniles. eventhe low bad w but Ii to F,enerally set on parentonly" basis may nut be posted as a result of parentalabsence or indifference.

Juveniles for w hum bail is set do not fare aswell at adjudication or disposition as do juvenileswho are released without bail. At adjudication.juveniles tor whom hail was set were found Jelin.quent or bound-over for trials in the criminalcourts at mut h higher than average rates. Theywere tontinued without a finding at less than one-quarter the rate of the caseload as a whole ( Appen-dix C. Table t`t t. At disposition, commitments tothe Department of Youth Servics were twice asfrequent in hail cases as they were for the fullcaseload (Appendix C. Table 7 ).

The filing of written motions in the BostonJuvenile Court is not t ommon. For the entire yearof 19'1. entompassing over 2.300 complaints,written motions were discovered in only 13cases.' Motions for discovery ( which were alwaysgranted were prominent in this group, as weremotions to suppress. Many of these motions weretiled by attortms from the Boston Legal AssistancePrjet r, althtugh this agent y was involved in only

handtul of cases in the court during the rear.Attorneys from the Massachusetts Defenders Com-mittee, representing the great majority of juvenilesin the Boston Juvenile Court. filed only a few writ-ten motions, there was no evidence that a writtenreply had been tiled.

The very low number of written motions in theBoston Juvenile Court can be explained, in part,by the very great caseload pressures which bur-dened the public defenders in 19"1. Until mid-! 9-2. when the Massachusetts Defenders Commit-

VCR it .t lit. 41..n% .ift tilt..! in thi 1..,urf .ttthi,,,t if. . .1 .'.Of HI !tftti I 1.1%c'. %%huh %tic. exAminc,i.11:% 11111 I 1..red Nino .01.1 R..serahi.

at

We tripled its representation in the court, the shyerweight of each defender's caseload was such as tomilitate against extensive motion practices. Inrecognition of the defenders' lack of time to prop-erly prepare and argue motions, th, presidingjustite has not required the defenders to arguemotions prior to the adjudication hearing. Instead.he has permitted wide latitude to the defenders inmaking their motions orally during the hearing.In many instances they don't even know theyhave grounds for a motion until they hear theevidence in court."

Apart from caseload volume, there is anotherexplanation for the low frequency of writtenmotions. Under c s previous leadership, the Mas-sachusetts Defenders Committee viewed districtcourt ( lower criminal court) trials as a means ofdistinguishing between cases which have legalmerit and those with none. With the latter group,the emphasis was on securing the most favorabledispositions. With the former, the lower courtproceedings were utilized as a discovery tool tostrengthen cases for trials de nort in the SuperiorCourt on appeal. In neither case was forcefuladvot at y a prominent feature of the defenders'work in the lower courts. Pursuant to this approach.the filing of motions in the district courts wasdiscouraged as an unnecessary practice which waswasteful of the defenders' time and which providedthe state with early notice of the legal issues whichwould subsequently be raised on appeal. Evenunder the new leadership of the MassachusettsDefenders, this issue has not been fully resolvedand differences concerning the value of full advo-cacy at the district court level continue to exist.

These attitudes are prevalent among the attor-neys who are assigned to the Boston Juvenile court.As one defender put it in explaining the rarity ofpretrial motions: "It's more than just a lack oftime. If you !lave a worthwhile issue you don'twant to give it all away to the police so they cango hack and think up all the answers. You want to

save something for appeal. However, on appeal,

49

they have pretty sharp district attorneys so I don'treally know.- 94;

Notwithstanding the lingering reluctance to filemotions in the Boston juvenile Court, a definiteincrease has been noted since the summer of 1972,when the Massachusetts Defenders expanded theircoverage in the Boston juvenile Court. Both defend-

ers and police prosecutors ("Sometimes it appearsthat they have nothing better to do with their timethan write. motions." have indicated that moremotions are now being filed than in the past andfeel that this trend is likely to,continue.

Although police department policy calls forobtaining the assistance of the police departmentlegal advisor when motions are filed, in practice,the police prosecutors handle almost all motionson their ow n ith the assistance of law studentsfrom the Suffolk Law School. Professional inter-vention for the state in answering motions almostnever occurs in the Boston juvenile Court.Although the police prosecutors feel that they areable to adequately respond to motions ("Thesemotions are not difficult to deal with." ), it is clearthat even with the help of law students, the stateis severely handicapped in its use of police officersto respond to the increasingly complex legal issueswhich are being raised in juvenile cases. Nowhereis this problem more apparent than when oralmotions are made by defense counsel at the adjudi-cation hearing. As the sole representative of thestate at these hearings and with no opportunity togain outside assistance, the police prosecutors areoften left without the means to frame an adequateresponse. U.: :r these circumstances. the judge hasno alternative but to intervene in behalf of thepolice prose, cam and himself develop the legalarguments which an attorney-prosecutor wouldordinarily be obliged to make. In the 87 adjudi-(army hearings which were observed, some 23motions were made orally by defense counsel.Of these, five were motions to strike. nine were

In tit r. It., Hutt s'. v

tItt ut-rt- ailt..1 in ti.mrm., nab in .f 21; in the tt,rr. /ling.rn -i R. pant.I.I.

50

motions for a directed verdict, three were motionsto suppress, five were motions to dismiss andone was a filo:. r to amend a complaint.

On a motion for directed verdict or a motion todismiss, most of the prosecutors can quite ade-quately respond by characterizing and interpretingthe evidence in such a a way as to meet defensecouns-rs argument. It is very rare that a prosecutoris required to say more than a few sentences reit-erating the testimony given by his witnesses.However, the judges themselves routinely "argue"the government's side when a legal issue is raisedby a motion or objection. This practice placesdefense counsel in a direct adversary relationshipwith the judgean uncomfortable relationshipfor the public defenders who must appear in thesame court on a daily basis." Under these circum-stances, aggressive advocacy is inhibited and thepublic defenders may well refrain from raisingtechnical legal issues which risk unwanted con-frontation with the judge.

The need to provide assistance to the prosecutionin responding to motions is regarded as an unde-sirable.necessity by the presiding justice as long asprofessional prosecutors are not available: 1 can'thold the police to the strictest standards of response.They can't cite a case in support of their argument,for example." As non-lawyers, the police prosecu-tors may have difficulty in dealing with legal con-cepts. As an example, the judge recounted a casein which the police, following their reading to ayoung suspect of the obligatory Miranda warnings,questioned the boy persistently in spite of his replythat he wished to make no statements. After con-tinued questioning, the boy finally broke down andprovided the police with incriminating statements.At the hearing, the judge ruled that the statementswere inadmissible to the complete bafflement ofthe police prosecutor.

It must be concluded that the juvenile officersand the court clerk presently perform an admirablejob of screening for legal sufficiency and of draft-ing complaints. Although errors do oecur in apply-

"7 Also we 1.1.. at 81).

ing the proper legal charges to particular factsituations, they are not frequent and excessivecharging is the rare exception. Wherever possible,police endeavor to adjust petty complaints withoutcourt referral. The court's caseload, therefore, doesnot reties t a high proportion of "junk" complaintswhich are indiscriminately referred to the court.

Notwithstanding the high level of general com-petence which the juvenile officers and court clerkdisplay in the performance of these functions, thesuccess of the juvenile officers, particularly, cannotbe divorced from their regular exposure to court-imposed standards through their work as juvenilecourt prosecutors. However, with the use of attor-ney-prosecutors to represent the state at adjudica-tory hearings, the direct influence of the court overthe police will be somewhat diminished. It is there-fore essential, as outlined in the Guidelines. Chap-ter 7, infra. that the juvenile court prosecutor playan important role in scrutinizing all complaintswhich are filed in the court.

The increasing number of pre-hearing motionswhich are now being filed in the Boston JuvenileCourt by the public defenders points out the needfor a qualified state's representative at this stage.The informal, almost casual, way in which motionsare presently responded to demeans the adversaryprocess and ensures neither the rights of the juve-nile nor the community's interests in fair buteffective representation. The Guide/it/LI also sug-gest a role for the juvenile court prosecutor inadvising the police on proper practices which areconsistent with the rapidly emerging body of legalrequirements which are now applicable to juve-niles. Although the juvenile officers gradually"catch on" to such demands through this currentwork as prosecutors, the process is often slow anddifficult. For example, juvenile officers discontinued

the use of line-ups for a period of time becauseof confusion concerning the requirements for con-ducting them properly..

Finally, many cases are referred to the courtwhich cannot be screened out by the juvenileofficers but which do not require full adjudication

51

by the court. Stubborn children, runaways andother offenses which are unique to juveniles areamong the kinds of cases which many courts aresuccessful in diverting or adjusting at the intakestage. The Guidelines. therefore, recommend theestablishment of an intake screening process whichwould seek to identify and divert appropriate casesnot requiring full judicial action. The participationof a juvenile court prosecutor is deemed essentialto the proper operation of an intake diversionprocess and in the formulation of consensual diver-sionary plans for submission to the court for itsapproval.

H. ADJUDICATION

A little less than half of the 87 adjudicatoryhearings which were observed involved admis-sions. That is, when the case came up for hearing,the juvenile "admitted to facts sufficient for afinding." These admissions include those cases inwhich juveniles waived counsel at arraignmentin return for an expedited adjudicatory hearingand an assurance of a light disposition.

However, most of the contested cases are onlynominally contested. It is the typical pattern in a"contested" case for the public defender to cross-examine the prosecution witnesses, to present nowitnesses on the defendant's behalf and then tostate that the government has not proved its case.Even the cross examination is frequently perfunc-tory and reveals no design or rationale on the partof the defense attorney. A case involving twoI 5-year-olds who were charged with larceny of abicycle is fairly typical of those nominally con-tested cases. The police prosecutor put on threewitnessestwo campus police who had appre-hended the juveniles With the bicycle in their pos-session, and the victim, who identified it as hisproperty. The defense attorney's cross-examinationof the campus police officers consisted of thefol lowing:

Q. Where did you apprehend these young men?A. In the parking lot.Q. How close were they to the bicycle?

A. One was holding it, and the other was stand-ing next to him.

Q. And you're sure he was holding it?A. Yes.Q. What time of day teas it?A. Four ciclek in the afternoon.Defense counsel made a total of seventy objec-

tions in approximately forty contested cases whichwere observed. Of these seventy objections, how-ever, fifty-five were made in only six casesthehighest total of objections in a single case beingthirteen.

In this same number of adjudications, twenty-One defense witnesses took the stand. Fifteen of

these were the juvenile defendants themselves.Mothers of defendants testified three times, and theother three w anesses were a store detective, a lawstudent and a companion of the juvenile defendant.The average time for a contested adjudicator}' hear-ing was under twenty-four minutes.

Public defenders display a range of trial styles.Most will not generally object to the form of thequestions used by the police prosecutor in exam-inin witnesses except in cases of flagrant abuse.Others object tc ith tar greater frequency but arcseldom su«esstul in keeping out damaging evi-dence. In one case, the defender made thirteenobjections in a case involving breaking and enter-ing and rape. Five ohm firms were to hearsay, twowere to questions asking for opinions, and six wereto leading questions. Most of these were sustained,requiring the police prosecutor only to rephrasehis question or to remind the witness not to testifyto hearsay. The judge paused only briefly to ruleon each ubje Lion. Every hit of prosecution evi-

(Jence was eventually admitted with little difficulty.

In the majority of cases observed, the attorneyput in no evidence at all, leaving the court only

ith the uncontroverted testimony of the prosecu-tion witnesses. Defenders often do not put juvenileson the stand to testify on their own behalf. Thedefenders contend that the testimony of juvenilesis unreliable and. if it appears to he: untruthful, islikely to invoke a strong reaction from the court

52

which could result in a much more severe disposi-tion than if the juvenile had not taken the stand.The presiding justice, on the other hand, regardsthis as another indication of the defenders' ownunwillingness to represent children with the sameadversary forcefulness as they would use in therepresentation of adults.

Defenders rarely offer the court an alternatetheory to the state's case. Their cross-examinationof the government's witnesses, while often lengthy,does nor reflect any preheating investigation orpreparation. In most cases, their examination ofthe government's witnesses is conducted with noapparent purpose or plan and seldom yield anyadvantage to the juvenile. Summations by thedefenders are the exception rather than the rule.

The defenders tend to assume that almost all ofthe juveniles who are brought to court are guiltyof the charged offense and would benefit frombeing under the supervision of the court. Theiropinions of the juvenile police officers and theprobation and clinic staff are highlytary. Under these circumstances, they feel littleincentive to expend the time and energy necessaryto truly contest the great majority of the caseswhich they handle. In spite of the fact that policeprosecutors represent the state, they would prob-ably agree with the assessment of one prosecutorwho stated: "Once a kid gets to court, it wouldtake a magician to spring him."

Accordingly, the defenders reserve their fulladversary efforts for those cases where the prosecu-tion has an unusually weak case or where thecharges are so serious that they cannot rely ontheir nomal presumption of juvenile court bene-volence.

The following example is one of the relativelysmall number of observed cases in which theprosecution's case was clearly inadequate.

The juvenile defendant, who had no priorrecord, was charged with attempted larceny of acash register in a state building. The prosecutorwas an officer in the State Capitol Police Force.He was also one of the policemen who had made

the arrest and gave testimony at the hearing. Botharresting officers testified that they heard an alarmgo off which is triggered by tampering with thecash register, ran down the hall and into the (life-teria where the register was installed. The defen-

.

dant w as f,icitici standing near the B ash register ands as arrested. Nothing had been taken. Defensecounsel put on two witnesses, the defendant andanother boy who had been in the cafeteria at thetime. This case was one of only sift cases where awitness other than the defendant testified for thedefense. The hors described the room as full ofteen-agers eating lunch, most of whom ran whenthe alarm went off. It was also brought out thatconsiderably over a minute passed between thesounding of the alarm and the entrance of thepolice. The adjudicatory hearing lasted for almostan hour, featuring extensive k ross-examination ofthe prosecution witnesses. Two motions were madeby the defender. One, to suppress statements madeto the police, was one of only three such motionsobserved in six weeks. At the end, the defendantreceived a finding of not delinquent.

It should be pointed out that the arrest in thiscase, having been made by a state police official,was not screened by the juvenile officers nor prose-cuted by one of the regular police prosecutors. Itmust also be noted that while most cases whicharc processed by the regular juvenile officers wouldsupport a finding of probable cause, the lacklusterdefense effort which most -contested- cases receiveat the adjudicatory hearing does not inspire con-tidence that they would, with better defense work,necessarily meet the requirement of being -beinga reasonable doubt.-

An examination of findings in the Boston juve-nile Court for 1971 (Table 5) and the precedingnine years" indicates a substantial reduction in theratio of delinquent to not delinquent findings.Across the ten-year period, the sari() was as high asfourteen delinquent findings for every one findingof not delinquent (1962) and as low as four -to-

' TAM tr rn the Comm. in% cAlth Slat:-tea p,rti .f Crotiont,cloAter of Crirrecti,,n ( 196.'4970).

one in 1967. Of interest is that for the five-yearperiod of 1962 through 1966, there were ten timesas many delinquent findings as there were nutdelinquent findings while for the five-year periodof 1967 through 1971, the ratio dropped consid-erably to an average of six-to-one. This decreasecoincides generally with the introduction of regular

53

TABLE 5.Findings in the Boston Juvenile Court for 1971(N = 1940) a

Finding_ .

DelinquentNot delinquentDismissed without a finding,Filed without a findingBound overContinued without a findingOtherTotal

Number

868132379

9476

3847

1940

Percent

(44.7)(6.8)

(19.5)(4.8)(3.9)

(19.8)(0.4)

(99.9)_ ^ - --

This table includes only those cases for which data concerningthe finding were available. These 1.940 cases represent 95.5% ofthe court's caseload (2.032).

public defender services in the Boston JuvenileCourt and may well be attributable to theirpresence.

( As shown in Table 6), almost 9()r'.i. of alljuveniles are represented by counsel in the BostonJuvenile Court. As indicated earlier, the court doesnot encourage juveniles to waive counsel and willonly icier a waiver in cases involving minoroffenses where the disposition is not likely to besevere. Waivers were accepted in fewer than 12%.of the court's cases. Almost three-quarters of alljuveniles are represented by the public defender.In a small percentage of cases, the court will assign

TABLE 6.Representation of Juveniles in the BostonJuvenile Court (1971)

Counsel

WaivedPublic defenderPrivate, appointedPrivate, retainedOther bTotal

Number a Percent_

(11.7)1191 (73.5)

56 (3.5)127 (7.8)57 (3.5)

1620 (100.0)

This table includes only those cases for which data on counseltype was available. These 1620 cases represent 79.6% of thecourt's caseload for 1971.

b includes law school defender programs and Boston LegalAssistance Project.

TABLE 7.--Findings In the Boston Juvenile Court for 1971 by the Counsel Type (N = 1562)

- --- -Dismissed Filed

Not without a without a BoundDelinquent delinquent finding finding over

Continuedwithout a Other Total

findingCounsel Num. Per. Num

ber cent bet

- -Per Num. Per.cent her cent

--Num. Per Num- Per- Num- Per- Num- Per-bet cent ber cent her cent her cent

Num.her

Per.cent

Waived 31 (17.0) 2 (1.1) 36 (19.8) 4 (2.2) 0 (0.0) 104 (57.2) 5 (2.7) 182 (100.0)Public defender 645 (56.3) 86 (7.5) 186 (16.2) 57 (5.0) 32 (2.8) 131 (11.4) 9 (0.8) 1,146 (100.0)Private. appointed 17 (31.5) 8 (14.8) 6 (11.1) 1 (1.9) 2 (3.7) 20 (37.0) 0 (0.0) 54 (100.0)Private, retained 42 (33.9) 14 (11.3) 25 (20.2) 5 (4.0) 7 (5.6) 29 (23.4) 2 (1.6) 124 (100.0)Other 26 (46.4) 2 (3.6) 13 (23.2) 3 (5.4) 0 (0.0) 12 (21.4) 0 (0.0) 56 (100.0)

. _ .

4 This table includes only those cases within each counsel type cases represent 96 4for which data concerii.ng thi rndini were ava.lable These 1562 was recorded.

private counsel. These cases usually involve Span-ishspeaking juveniles who would have difficultycommunic ating with a public- defender. Assign-ment of _private counsel may also be made in asmall number of cases in which counsel appearsin fewer than 10'; of all cases. Considering thefact that the court requires juveniles and theirfamilies to consult with a public defender beforeagreeing to to aive counsel. it can be stated thatsome f:Irm of t ounwl assistance is provided to everyjuvenile who comes before the court.

In terms of the effectiveness Of counsel, how-ever, the data suggest that there may be markeddifferences between the various types Of counselwho appear in the Boston Juvenile Court Table7 ). Juveniles who are represented by private coun-sel, both appointed and retained. are less likely tobe found not delinquent than are the clients ofthe public defender. In fact. the clients of publicdefenders are almost to ice as likely to be founddelinquent as are those of private counsel. More-over. even it found to be delinquent, juveniles whoarc represented by private counsel avoid the mostsevere dispositional alternatives.

Although the greater success of retained privatecounsel could be explained, at least in part, by thebetter image which their more affluent clients mayproject in court, this factor would not account forthe equally successful performance of appointedprivate t Furthermore, comparing casesrepresented by retained counsel with the distribu-tion of offenses throughout the Boston Juvenile

54

':, of the t620 cases for which counsel type

Court's 1971 caseload, it appears that, with onlya few exceptions, retained counsel represented afair cross-section of the distribution of offenses inthe total caseload ( Appendix C, Table 2) . Retainedcounsel did appear in a disproportilnately highpercentage of cases involving charges of assaultand battery, destruction of property and disorderlyperson, and a lower percentage of cases involvingcharges of breaking and entering and runningaway. Overall, however, the cases which werehandled by retained counsel were representativeof the court's caseload. Their somewhat higherfrequency of appearance in "serious" cases suchas assault and battery may explain the fact thata greater percentage of juveniles who are repre-sented by retained counsel are bound over to thecriminal courts for trial. .

Although private attorneys are usually strangersto the juvenile court and are unfamiliar with itsprocedures and practices, court personnel agreethat they are alh'e to spend far more time in pre-paring their cases than the public. defenders. Also,they arc less likely to assume the benevolence ofthe juvenile court or the advantages of court super-vision. The chief probation officer, in referring tothe harm that is being done to juveniles who getaway with their misconduct because of the inter-vention of counsel, stated: "There is a differencebetween private and public counsel. We can do alot better with the public defender. Private counselhas no interest in court itself or the system. Theyare only client-oriented. The Massa( husctts Defend-

ers are community and court-oriented."

Moreover, since the private attorneys are oftenmore familiar with the defendant and his familythan the public defender, it is our impression thatthe judges give more credence to their remarksabout the juvenile's bac kground and c ham ter andtheir picas for leniency. A private attorney may beable to say with some credibility that he has knownthe family and child for years, and to characterizethe child's behavior as a minor aberration fromhis basically good nature.

Beyond that, private attorneys are often able tosuggest more specific dispositions. The observerconcluded that private attorneys recommendedspecific courses to the judge with far greater fre-quency than their public defender counterparts.For example. in one case the attorney, at disposi-tion, told the judge that the defendant was associat-ing with a specific bad companion and suggestedthat the conditions of his probation include anorder to stay away from this named companion.The defendant had an extensive record and it wasthe observer's impression that this tactic was suc-cessful in avoiding a committal to the Departmentof Youth Services. In another case, the recommen-dation involved a placement in a particular privatehalfway house which had agreed to accept thedefendant. This, too, was accepted by the judge.

Lastly, private attorneys are often shown greaterconsideration by court personnel than public defend-ers. For one thing, cases involving private counselwill sometimes be scheduled to begin at a specifictime. w hereas all other cases arc called more or lessrandomly, requiring defendants and their familiesto wait around for hours. However, this "con-sideration" is also apparent in more subtle but moreimportant ways. For example. one shoplifting casewas observed in which the charges were dismissedat the judge's own suggestion. This was a situation

where our observations led us to cent lod that thebest a public lefender could have hoped for was acontinuance without a finding, which the judgesconsider equivalent to a delinquency finding whenit appears on a child's record. The juvenile was

55

apprehended in a store with a jacket on his armthat he had removed from another department.Defense argued that intent to steal the jacket hadnot been shown. The judge countered byfrom the statute, which specified that the goodsneed not be removed from the store to constitutethe offense, but just taken from the department,saying "I didn't make the law." The judge thenasked defense counsel if he would be "satisfied'.with a dismissal, which the attorney readilyaccepted.

The competence and self-assurance that theregular police prosecutors project at hearings variesconsiderably from man to man. However, theirgeneral style and approach to the prose=cution ofjuvenile cases is much the same. They performtheir courtroom duties in a detached and "objec-tive" manner. Their courtroom techniques aresimple, practical and direct. They are designed topresent the court with the basic evidence necessaryto support the allegations of the complaint. Theyare responsible for securing the presence of thestate's witnesses, eliciting their testimony and cross-examining defense witnesses. The police prosecu-tors display a working knowledge of the rulesagainst hearsay evidence and frequently admonishtheir witnesses to "testify only to what you saw."Occasionally, they will object to leading or irrel-evant questions but generally limit themselvesto the responsibility of presenting an affirmativecase for the state. Their demeanor is crisp andoccasionally "chilly" but they rarely adopt theharsh, punitive style which characterizes some oftheir counterparts in other courts. Their role at theadjudicatory hearing is narrow, serving primarilyas a conduit for the state's evidence. They are not,in any real sense, advocates, and they seldomengage in arguments to the court or in any activitywhich could be seen as an overt effort to sway oradvise the court. They rarely attempt to interpretthe evidence and refrain from areas in whichopinions or discretionary judgments are called for.

In spite of the claims that juvenile officers prose-cute almost all cases in the Boston Juvenile Court,

wir observations re%eal that a substantial per-tentage Of cases arc prose, cited by police officers

other than the regular police prosecutors. Inapproximately thirty percent of the hearings whichwere observed. prosecution was conclueted by the.crresting Ott, et. I:or the most part. the Lati, ors

were members of the Roston Police Department,but a transit authority officer and a member of theState Capitol polite eontingent also prosecuted.

While there is no -hard-and.fast- rule concern -ing the use of arresting (dicers as prosecutors. Anetiort is in.tde by the ranking juvenile officer tolimit the use of non-juvenile officers as prosecutors.However. IA lien an officer asks to Nowt ute his own.1.4t and the sergeant determines that he is suffi-

e iently competent. he w ill allow it. Nevertheless.all the itie elide otlittls point out the need forexperience and skill in prosecuting cases in the

ruvenile Court and concur in the view thatmost nc)n-juvenile officers are not adctlu-ite to tilt-.task. When asked w 'water any police officer shouldbe permitted to prosecute. one juvenile officerstated. -No. not today. You have to learn theproper wa to present a case. An officer can't just

walk in oft the street and expect to know wkit todo. The police prosecutors regard themselves asire, !JINN w ith .t level of expertise not foundAmon!! other police. officers In this rest ard. theirattitudes tow and the use of polite officer!, who lac ktheir unique skills is not substantial!). differentfrom that whit h an attorney-prosecutor might dis-pla) toward the use of top, pollee officer to prose-L ut. Juvenile °flit ers speak disdainfully of youngpol 'cum n ho believe they can perform om-

recently as rosetutors and w ho insist on havingan opportunit) to present their own cases. It is notimprobable that some plait en en are alltmed topr; :set inc in order to demonstrate to them thediffiLult) tit the iL)11.

juvettik otlit crs are nor, however, unanimousin the %iew that one should not prosecute. in cases

where he w as the arresting otuit er. 'While someregard this as an undesirable :sraetic v no matterwho is prose( tain::, others arc convinced that they

56

can fairly and effectively present a case notwith-standing that they may also be their own chiefwitness. The simple conviction which juvenileofficers express concerning their prosecutorial abili-ties is reflected in the following statement: "If youare insolsed in the arrest. you don't have to relyon others for the story. Prosecution is, in a sense,story telling. I know that it I make an arrest, it'sabsolutely justified. I don't need extra cases." Ofcourse, this statement also reveals one of the prin-t iNI dangers in allowing arresting officers to pros-ecute. In presenting his own case, the police pros-

eeutor can no longer be regarded as the objectivestate's representative. His own veracity, credibilityand integrity are at stake in the proeveding. Anunfavorable finding by the court may be tanta-mount to an attack on the witness-prosecutor'struthfulness. Because of the prosecutor's personalinvolvement in the case, all the ordinary elementsof an adversary proeceding----eross-examination,objections to evidence, etc.may take on the col-oration of personal conflict. Under those circum-stances, it is extremely difficult to maintain anappearance of fairness and propriety in the court -room. A !du Nigh some juvenile officers contendthat they are ably to maintain an appropriateprosecutor's demeanor even when their own testi-mony is under challenge ("I'm not vie ious. If akid takes the stand and denies what I've said, I justcontinue to ask him simple questions. I don't getangry.- ). others recgnin the inherent difficultiesin performing the dual roles of prosecutor andwitness. "We prefer not to do the prosecuting whenwe have been involved in the arrest bet ause thelawyers on the other side can dig into you and youdon't have anyone to take your side." The rankingpolice prosecutor concurs in the opinion thatarresting officers should not prosecute and t its theproblems of being one's own witness and makingobjections at the same time.

When a prosecution is eonduc ted by an officerother than a regular police prosecutor, it may con-sist of little more than the police officer's puttinghimself on the stand and reading a prepared

Att a Mint of the in Merit. The arresting officers showonly a primitive tahletstanding of the rules ofevidence. They lack telurtfis)in presence andusually scn uncomfortable with the prf x

In some caws, of course, the issue is basically onlyone tat so the 011i, t.T's 1,1( E, alt JIM! Linty

U-411 legal print ipals is relatively unimportant. Evenso. a serious question of propriety is raised whenthe arresting officer cross-examines a juvenile whotakes the stand in her own behalf t in cases involv-ing split icing for prostitution. for example ) withquestions about what ''I said to you" and whatvou said to me.

It a case requires more than just his own testi-nI4 my, the arrestiug toffit ct at Ling as prosecutorquite rapidly gets out of his depth. Several instancesof embarrassinf: inadequacy have been observed inthese cases. In one c am:. the arresting officer failedto clic it testimony from the victim identifying thedefendant as one Of a group of boys who allegedlyattacked him. The judge became quite annoyedsince he was clearly personally convinced of thedefendant's involvement but felt that the arrestingofficer had failed to present the evidence properly.He granted defense counsel's motion for a directedverdict and chided the officer, saying: The onlytestimony you gave is what someone told you. Thatisn't admissable in court." Afterward, the judgecalled in the chief police prosecutor, told him whatkid occurred, and ordered him to instruct thatofficer on how to present a. case. This judge severaltimes demonstrated that he does not prefer to havearresting officers act as prosecutors. Although heroutinely intervenes to assist police in respondingto legal issues raised by defense motions and objec-tions, he does expect the prosecutor to present thefacts in a coherent manner at the very least.

It was difficult to determine the extent to whicharresting °flit ers lost cases which would have beenwon by more competent prosecutors, since theobservers had no knowledge of the facts of thecases other than what came out in court. How-ever, it can be said with some certainty that at leasttwo cases were lost because of ineffective prosecu-

57

fion. One was the case just discussed. The otheri::volved a charge of use of a motor whit le with-out authority. The arresting officer simply testifiedthat he stopped a car reported as stolen and thedefendant was riding in the passenger's seat. tiethcfl sae down. Defense pros ceded to move Sill -Lcssttilly for a directed verdict on the ground thatintent had not been shown. The judge then turnedto the policeman and explained that the statuterequired knowledge and that he had not testifiedto anything tending to establish knowledge. Thepoliceman said: "I just put in the evidence 1 haveand that's my job." The judge seemed somewhatperturbed at that response and directed a verdictof not delinquent.

Although some of the most flagrant instancesof prosecutorial inadequacy tend to occur when thereazular police prosecutors arc. not involved in thepresentation of a cast at the adjudication hearing,there is ample reason to conclude that the use ofjuvenile officers to represent the state at adjudica-tion is not desirable. In using police officers whoare untrained in law, the state assumes an obvioushandicap in all but the most uncomplicated pro-ceeIngs against juveniles. Unable to argue pointsof law and often failing to elicit testimony whichis necessary to establish all the essential elementsof an offense, police prosecutors would seriouslyjeopardize a large proportion of their cases wereit not for the reluctant allowances which the courtmakes for the untrained police prosecutors and theactive assistance which it occasionally provides.Moreover, the generally low standard of publicdefender representation in the Boston JuvenileCmurt fails to exploit prosecutorial weakness to thedegree that one would expect.

Some police prosecutors, in keeping with theirselfperceptions as highly skilled advocates, refuseto acknowledge that their work is buttressed by ahelpful court. They interpret the court's efforts tomaintain some minimal standards for prosecutionas evidence that they receive no assistance whateverfrom the judges. "When you walk into that court,you adhere to th- rules of evidence or you will hear

about it. The judg won't intervene if defenseralseS tethnit al point and the prosecutor can'tanswer." The court won't help us. They holdpolite prosecutors to at least as high a standard asdefense accorttcv,. we get no favors."

Other yolk pc( iset utors, l ttwe cr, At know ledge

that the judge w ill intervene when .1 juvenile offi-cer has made a mistake or is unable to respood onon an issue of law. They justify this practice onthe grounds that they should retcive suth con-sideration itt view of the fact that polite prosecu-tion costs the taxpayers less than would system

ttf attornyprosecutors. -Yes, and I think he [thejudge! should !assist the police). After all, itsAmerica's .liggest bargain--having police Lk, pros-ecution. No Assistant I).A. could handle ourtaseload.-

Public detenders generally conceded the basktomptente of some polite pros', utors in present-ing simple fact situations in cases which are fun-damentally sttsmg. However, they generally agreethat polite prose, utors are vulnerable to aggressivedefense tactics and tannot stand up to such chal-lenges. One .itturney t fauns that he seeks oppor-tunities to take advantage of the untrained politeprosct utors. -Sometimes I nuke a motion even ifthe law is not on our side, hoping that the police

on't be able to respond." Our observations, how-ever, do not indicate that public defenders, as arole. apply heavy pressure on the police prosecu-tors. Although the defenders tretfit the BostonJut tilde Court with maintaining standards ofiticht i.il integrity w hit h arc far higher than thosewhich arc found in other linter courts of the Coin-moms ealth, tliey are well aware that its judges willintervene to provide aid to a floundering policeprosecutor w hen they feel that it is warranted.-Some of the judges will definitely do that. Theystart asking questions and take over." The presiding

justice at knowledged that the imbalance in adver-sary skills that exists in the tourt often forcesjudges to discord their neutral role and ac tivelypartit ipare in the presentation of the state's case.It's frequent enough that you find you have saved

58

a Last: by asking some questions. I go in to clarifya point and end up bringing out all kinds of things,although it wasn't intended that way. Thc hestthing that ever happens to a judge is to have twosuperior lawyers trying a case. The judge doesn'thave to do anythingthe attorneys do it for him."

When judges intervene in support of the pros-ecution, normal adversary relationships break

down. Objections, if they are made, must bedirected against the judge's own questions and hein turn, must rule on their validity. This distortionof the adversary process creates a climate which isinimical to good advocacy. In this sense, theabsence of a qualified prosecutor probably doesfar more to btilie tapahle defense in the BostonJuvenile Court than it does to encourage it. Indiscussing the effect which the introduction ofprofessional prosecutors might have, one publicdefender conceded that "defense would have toupgrade itself just to survive."

Boston juvenile Court judges make an earnesteffort to preserve their posture of neutrality in thefate of prosecutorial cklicienties. As a rule, thejudges require the prosecution to make out thebasic case against the juvenile. We have seen themresist the impulse to intervene even at the cost ofa dismissal or a finding of not delinquent. Theranking police prosecutor reports that the judgesare not at all pleased when they are forted to throwa case out because of an inadequate prosecution bya polite prosetutor. "The judges will call me inand chew me Out. He'll say the officer had a goodpinch but he blew it." However, the consequencesof repeated dismissals under these circumstancesare often greater than the judges are willing toatcept. They tin, therefore, assume the burdens ofprosecution w ith considerable regularity. Severalexamples are reported below.

One case which was observed involved a boycharged with several offenses connected with thetheft of a bicycle. The police prosecutor was having

a certain amount of difficulty getting his witness

to testify to facts rather than to hearsay or opinions

and defense counsel was objecting repeatedly.

-d

Finally, the judge turned to the public defenderand said. "It seems we have a wry technical casehere. You know there are ways of getting this evi-dence in. I'm not going to prosecute this case butat some point I'm going to have to ask a few ques-tions in the interests of did, and .1delinquency finding resulted.

In an armed robbery case, the police prosecutorhad neglected to elicit testimony from the victimtending to show that he was put in fear by theknife which one of the assailants had held by leisside. After defense counsel's cross-examination, thejudge asked the victim a series of questions estab-lishing that he had seen the knife, had been afraid.and as result, had given over his money. In thisLAU:, the judge himself established an essential de-ment of the rime that the police prosecutor hadneglected to establish.

Public defender attitudes regarding judicialintervention vary somewhat. Most feel that theyare placed at t disadvantage in arguing againstuntrained prosecutors in that judicial interventionshifts the adversary balance against them. "Therearc cases when I felt we were penalized by beingagainst the poke." Another defender, however. ismore sanguine in assessing the impact of suchintervention. In relating an incident in which ajudge brought out an element of a case which thepolite had forgotten. the defender said, "I didn'tfeel that justice was miscarried since it was only astupid mistake. Why should I benefit from that('

Judges take the major responsibility for answer-ing &foist- counsel's motions and objections.Although they will ask the prosecutor if he hasanything to say, they do not expect him to be ableto make legal arguments. For example, during onecase a defense motion was made to which thejudge responded by raising the legal arguments onthe other side. After several exchanges betweenthe judge and defense counsel, the judge turned tothe proses utor and asked him if he had anythingto add, saying. You really don't have to argue,I've di me the argument for you."

The observer noted only rare instances where

59

there was a question about the correctness of thejudges' rulings on legal points. However, it wasevident that defense counsel is placed in an uncom-fortable position by having to argue directly againstthe judge. In a court situation involving lawyer-prosecutors, the defense would make his argument,the prosecutor his, and the judge would then ruleon the question and give his reasons. In the BostonJuvenile Court, there is a discussion back and forthbetween the judge and defense counsel. It is fre-quently difficult to determine the point at whichthe judge has ceased presenting the arguments andhas made his final ruling, but defense has to stoparguing at that point or risk antagonizing thejudge. It is also arguable that casting the judge asthe person with responsibility for raising the pros-ecution's legal arguments prejudices him in favorof these arguments.

It would be inaccurate, however, to leave theimpression that the judges do not also on occasionassist defense counsel. The judges tolerate quite abit of incompetence of the part of defense. One ofthe judges repeatedly instructs defense counsel thatthey must qualify witnesses by asking them fortheir names and addresses. He once showed hisdispleasure at the performance of one of the publicdefenders by telling him that he had missed hischance to make an effective summation by failingto bring out obvious inconsistencies in the pros-ecution's case. The judge then instructed the defend-er generally on the purposes of summation andgave him another opportunity to do it correctly.

In juvenile courts generally, and in Massachu-setts particularly, there is relatitcly little in the wayof plea-bargaining or its equivalent. In the firstplace, the type or number of charges which arebrought against a juvenile have no automatic rela-tionship to sentence. Even where a finding of delin-quency is made by the court and a commitment ofthe juvenile is ordered to the Department of YouthServices, the judge has no authority to specify thelength or terms of the incarceration. Moreover.because Massachusetts has no PINS classificafion,

the option to reduce a complaint from one alleging

delinquency to one of lesser severity is not avail-able. Finally, with no attorney-prosecutor in thecourt, there is no community representative avail-able with authority to negotiate with defensecounsel for the purpose of arriving at a "bargain"which fully balances the interests of the State andthe juvenile. In other jurisdictions ( Rhode Island,for example ), it is common for defense and pros-ecution, under court supervision, to agree upon arecommended disposition in return for an admis-sion by the juvenile to the facts. However, withthe exception of the previously described proce-dure which one judge employs at arraignment toencourage admissions in cases of a minor nature,there is no formal vehicle in the Boston JuvenileCourt for the achievement of negotiated settle-ments of cases.

This is nor to say, however, that "arrangements"are never made with police prosecutors in an effort

to bring about some mutually desired outcome.Both police and defenders acknowledge that theinterests of justice may require that the presenta-tion of a case he tailored to avoid a dispositionwhich is more severe than the circumstances war-rant. Although police prosecutors are uneasy withthis responsibility, the very fact that it persists inpractice may be a measure of its need. One couldvery well argue that in the juvenile court, with itscommitment to an understanding of juvenile

behavior and to the goals of treatment and rehabili-tation rather than punishment, such opportunitiesfor prhearing analysis and discussion would heencouraged.

While the opportunities for negotiated disposi-tions are far more limited in juvenile courts thanin the courts, there is sufficient variety inthe dispositional alternatives which are availableto the juvenile court to encourage its use. Obvi-

ously, a continuance without a finding is far lessserious in its implications than is an adjudicationof delinquent y. or a probation term versus institu-tionalization. However, given the police prosecu-tors' very strong disinclination to make formalrecommendations to the court or to assume pub-

licly* any discretionary responsibilities, bargainswith defense counsel, when they do occur, go tothe manner in which the police prosecutor willpresent the state's evidence at the adjudicatoryhearing. By controlling the flow of evidence whichis submitted for the court's consideration, the policeprosecutor can play an important role in shapingthe court's perception of the offense and the juvenile.Since the "character" of the juvenile, as reflectedin the description of his law-breaking conduct, issuch an essential ingredient in determining dis-position, the power of the police prosecutor toaffect the future of the juvenile offender may besubstantial. But the assumption of this responsi-bility by a police officer, acting outside the reviewof a qualified State's representative, is wholly unde-sirable. What it amounts to is a kind of benigndeception which is calculated to deprive the courtof a full account of the offense without notice,explanation or authority. Moreover, the police,themselves, are extremely uncomfortable in a rolemore properly placed in the hands of an attorney-prosecutor. The ranking police prosecutor expres-sed his view that a police officer should not exercisesuch discretionary authority:

I don't buy plea-bargaining very much. It is not apilice function to predetermine in the corridor howserious to make a case look. We are a reportingagency; we report the facts to the court and don'tinterfere with the court's job. We should alkiw thejudges to make their own decisions. The policeshouldn't be privy to any knowledge that the courtdoesn't have. Probation staff will give the otherrelevant information; that is their job. I can onlybe a policeman.

Also, there is a regulation of the police depart-ment which is not always followed perhaps, thatofficers are not permitted to talk to defense counselunless the victim is present.

It is up to the court to decide whether there areextenuating circumstances that would justify goinglight on the sentence. That is not a proper functionof the police. The function of the police is to tell itthe way it is without adding or detracting, and to letthe court make the decision.

The D.A. stands in a different light than thepolice. He is more an officer of the court.

60

Yet the view of police prosecutors that macaws are tried when there is no genuine clique.over the facts and their desire to give certain juve-niles "a break" leaves them open to propositionsto "plea bargain." The lack of more formalitedadjustment me.hanisins leaves little alternatise.

Although police prosecutors obliquely acknowl-edge that they make "deals" occasionally withdefense counsel. they are reluctant to describe theprocess or to discuss the criteria which they employ.Defenders, however, freely state that they seek andobtain such cooperation from the police prosecu-tors. In a case involving violence, for example, I%in offer to admit if he the police prosecutor]will 'put it in light'keep out some of the worstfacts. . . . They really go along with the juvenilecourt ideal." Another defender put it this way,"Very rarely is there it kid they call a 'bad kid.'They will keep out datnaging evidence in exchangefor an admission. They aren't out to get kids."

It is difficult to determine the frequency withwhich police prosecutors gear the presentation Ofthe state's case toward the achievement of a pre-determined outcome. Several contested cases wereobserved which suggested this practice.

For example, one boy was charged with twoarmed robberies, normally a crime considered mostserious by the court. The police prosecutor put thes it tim of the first robbery on the stand as his firstwitness. The victim told a story of two older menand the defendant approac hing him and demand-ing money. One of the older men held a knife athis side where the victim could see it during theencounter. The police prosecutor then asked clues-titans specifically directed toward eliciting fnimthe witness the statements that the defendant, whilewith the two others stood at the back during thewhole exchange and never said a %vont or took anyactive part. Similar questions were asked of thesecond victim who responded in the same way.The prosecutor had clearly decided and was sug-gesting to the judge that the youthful defendanthad been influenced by his companions and wasnot committed to 'criminal behavior. The judge

61

found that more than mere presence had beencstablislml and that the government had provenits case. Although it appeared that the police pros-ecutor did believe the boy to be legally culpable,he was willing to risk a finding of not ddiquentrather than overemphasile his crinuninal involve-ment. It is interesting, however, that the policeprosecutor made no open effort to alter the judge'sview of the case.

In summary, it is dear that the governmentoperates under a severe handicap in presentingcases at the adjudicatory stage in the Boston Juve-nile Court. Although the best of the regular policeprosecutors have little difficulty in representing thestate in simple cases hidi do not involve com-plicated fact situations or issues of law, they arcwholly unable to respond effectively to most objec-tions and motions. When prosecution is conductedby the arresting officer, there is no assurance thateven the most simple of cases will not have to bedismissed because of a failure to establish an CSSVn

tial clement of the offense. Under these circum-stances, the court is placed in the difficult positionof dismissing a large percentage of otherwise viablecases or intervening to assist the prosecution. Theinterests of the community in the fair and efficientadjudication of juvenile caws are not furthered ineither event. Judicial intervention in behalf of theprosecution raises significant doubt concerning thefairness of the proceeding and is not likely to leavea juvenile or his parents convinced that "justiceis blind" in the juvenile courts. Moreover, a highstandard of def...nse assistance will be impossiblein the Roston juvenile Court so long as aggressiveand sophisticated representation carries with it thethreat of a direct adversary contest with the judge.The increase in the number of public defendersassigned to the court and a greater interest injuvenile court representation among the new lead-ership of the Massachusetts Defenders is likely toexacerbate this problem in the coming months.

Far more cases are "contested" by defenders than

appear to be warranted. The nominal, pert tory

defense which defenders provide in many of these

cases is rarely of any assistance to the juvenile anddiverts greatly needed time and resources from theinvestigation and preparation of other, more prom-ising cases. Many of these "contested" cases couldbetter be resolved through the development ofnegotiated consent decrees or a diversionary pro-gram prior to the ad judicatory hearing. However,with no attorney-prosecutor present with authorityto engage in stub joint rewinmendations and toapprove them in behalf of the community, theseopportunities are not available.

The foregoing considerations were prominentin our recommendations concerning the establish-ment of an Q1licc for Juvenile Prosecution and areparticularly reflected in Standards 2.5 and 2.8 ofthe Glade s enumerated in Chapter 7, in Ira.

I. POST-ADJUDICATIONFrom its inception in 1906, juvenile delinquency

legislation in the state of Massachusetts has had asits avowed purpose: "that the care, custody and dis-

cipline of the c hildren brought before the courtshall approximate as nearly as possible that whichthey should receive from their parents, and that,as far as prat ticable. they shall be treated, not ask riminals, but as children in need of aid, encourage-ment and guidance."

Consistent with this end, Judge Harvey Hum-phrey Baker. the first Presiding Justice of the Bos-ton Juvenile Court, declared that the primaryobjective of the court is "to put each child whocomes before it in a normal relationship to society

as promptly and as permanently as possible . ." tm`

In spite of the many years since Judge Baker's

tenure on the court. the achievement of this goalremains as the foremost tactic Oared concern of thecourt's personnel and could be regarded as an

( errahle raitim dc't-tri- for any progressive juve-,Hilt justice system. However, it is in a court's ability

to provide cite( rive diagnostic semi,. es and to

11 I IP), to St." : III ( ;:t l .614.14,iirm ..1.nt.terti fR the'

q ?kr. 1.1.. hrl III 44 III PftCtItc .1 ft the

11 :1:411 t krf I April PH.) iii ( .itn:4v

62

formulate and implement individualized treatmentprograms which are responsive to the needs of itsclient population that this goal can ultimately be

met. In the Boston Juvenile Court, even more thanin the juvenile courts of many other jurisdictions,

the primary focus for this effort is at the disposi-

tion stage. As noted, earlier, Massachusetts makes

no statutory provision for intake screening ofjuveniles or for pre-adjudication diversion. More-

over, in keeping with the court's structure as aformal court of law through adjudication, all social

investigations and the preparation of social historiesand treatment alternatives are deferred until adjudi-

cation has been completed. In practice, the lack of

intake screening, informal adjustments and diver-

sion mechanisms means that a very large percent-age of those juveniles who arc complained againstwill have their futures determined at disposition.In characterizing the post-adiudieative process asbeing the most important stage in the court's proce-dures, former Presiding Justice John J. Connelly

stated: "It is the 'last clear chance' of the juvenile

court to influence and change the attitudes andbehavior of the child." As a practical matter,disposition may be more accurately described as the

"only clear chance" which is currently available in

the Boston Juvenile Court.As is shown in Table 8, 868 formal dispositions

were made in the Boston Juvenile Court during1971. These represent dispositions which werefollowing a delinquency adjudication. They do not

include a very large number of cases in which the

allegations of the complaint may be establishedto the court's satisfaction but which are concludedwithout an official finding of delinquency. Courtactions of this type might include continuanceswithout a finding, cases which arc filed without afinding and some cases which the court may dis-miss without a finding. Because the court's general

practice is to cork luck an adjudication hearing with

a brief statement that the complaint's allegationshave been proven tin appropriate eases), it pre-serves its options to make or withold an official

101 Ad.

finding of delinquency until it has an opportunityto to iew mailable information relating to thejuvenile's background and social circumstances andto determine whether a delinquency finding is war-ranted. Accordingly, the court frequently utilizes&Tow:0114qm; hearings to arrive at cast: tcrinum-tions made without a finding. ft should also benoted that the issue of binding over a juvenile fortrial in the criminal courts arises for the first timeat the post.adjudicative stage upon the court's own

TABLE a-- Dispositions in the Boston Juvenile Court for1971

Disposition Number Percent

Probation 302 (34.8)Suspended sentence probation 266 (30.6)Filed 155 (17.9)Committed to D Y.S. 95 (10.9)other 32 (3.6)No data 18 (2.1)Tot al 868 (99.9)

motion without prior notice and is considered aspart of the normal dispositional hearing.

Combining disposition hearings which arc con-ducted following a finding of delinquency and thosewhich are conducted in cases not resulting indelinquency finding, it can realistically he asstsmedthat as many as 90(1. of the cases handled in theBoston juvenile Court proceed through some formof dispositional inquiry. Given the absence of anintake screening or diversion mechanism in thecourt, the overwhelming majority of court referralsmust await a judicial finding that the allegationsagainst the juvenile have been proved before pro-ceeding for the first time to an evaluation of thejuvenile's treatment needs and a consideration ofalternate court actions. Notwithstanding a findingof involvement, the juvenile judge's discretionaryauthority at this stage is quite broad. Dependingupon the circumstances of the offense, the com-munity's security concerns and the rehabilitativeneeds and prospects of the juvenile. court actionscould r mgo from relatively non-restrictive contin-uances without a finding through such very severeactions as committal to the Department of Youth

63

Services for an indefinite period of time or commit-tal for trial in the adult criminal courts. It is clearthat at no stage in the juvenile court process arethe dual concerns of community protection andoffender rehabilitation more sharply focused thanat the disposition inquiry. Certainly, it is the pri-mary opportunity in the Boston juvenile Court tomake a reasoned judgment concerning the juvenileoffender who is before the court and to providesuch guidance and assistance as may be necessary.

Thy proper. role of the State's representation atthe disposition stage of juvenile proceedings isamong the most unclear and unsettled questionsrelating to juvenile prosecution. Whereas manyhave come to accept the need for attorney-prosecu-tors through adjudication as a necessary ingredientof the trend toward greater procedural formalityand as a complement to the increasing involve-ment of defense counsel, there remains strong resis-tance to the notion that the prosecuting officialshould be a significant factor at the dispositionstage. In essence, opposition is founded upon thebelief that the primary goals of the juvenile courtmovementthe provision of aid, encouragementand guidance to juveniles in troublecan best beachieved in a cooperative, harmonious atmosphere,one which is free of the elements of adversary con-flict. The presence of the prosecuting attorney withhis identification as an agent of punishment, it isargued, would only impede the work of thosewhose basic concerns are with the welfare of thejuvenile. It would mark, it is feared, the final cor-ruption of the social welfare ideals of the juvenilecourt. It is our belief, however, that the prosecutorcan play an important role in making dispositiona far more vital and meaningful experience.

It can safely be said that at the prescat timethe contributions of prosecution and defense todisposition inquiries in the Boston juvenile Courtare minimal. For a variety of reasons, neither thepolice prosecutors nor the public defenders appearwilling or able to assist the court in the oftenagonizing process of making effective dispositionaldeterminations. In the final analysis, the court must

?, 3

rely on its own internal resources and itv,ouity tofind workable solutions to the v cry difficult prob-lems h are presented to it. It is only in therarest of instances that the representatives of thestate or of the iir.ende add anything to the hear-ing which might expand the body of information,perceptions or alternatives which is already avail-able to the Lourt.

In the Boston Juvenile Court more than halfof the cases adjudicated are, for all practical pur-poses, dim. -d of on the same day as the ad udi-

catory hearings. This group includes many caseswhich are continued without a finding. Althoughthese AM.S are still technically open, it is rare thatany further action is taken by the court. Police pros-ecutors are present at disposieion only when itimmediately follows rt.,: adjudication hearing. Inthose cases cc hich are continued for disposition, thepolice prosecutors play no role at all and are noteven present in the courtnxm. The State, therefore,is not represented in those cases which are deferredfor Ate- preparation of clinical reports and socialhistoriesin practice, those cases which the courtdeems as requiring the broadest range of assistancein determining an appropriate disposition.

But even in those cases where the police prose-cutor is present at dispositionwhere adjudicationand disposition are conducted cm the same daylie generally takes no active part in the hearing.Although the court commonly asks the prosecutorit he has any objection to a proposed disposition.even this opportunity to participate is rarely exer-

t tscd. In fact. of a total of ninety-one dispositionswhit were observed in the Boston Juvenile Court,the oolice proseoitor voiced his disagreement ononly one 4 x.c.+Nion. In that case. one which involved

an incicknt of rape committed by a boy with aserious record of violent crime, the prosecutorobjected to a defense proposal for a suspended sen-

tence. His argumentthat the juvenile was a dan-ger to the communitywas accepted by the courtand the boy was committed to the Department ofYouth Services. In tour other cases, the prosecutorvolunteered his comments at disposition. In two of

64

these, the prosecutor described extenuating ir-cumstances for the court's consideration. Althoughhe suggested that a light disposition would beappropriate in these two cases, no specific disposi-tional recommendations were incorporated in theprosecutors tOMOUS. In fact, with the exceptionof the aforementioned rape case, prosecutors madeno specific recommendations to the court in any ofthe cases observed and, with the exception of thefive cases cited above, made no overt effort toinfluence disposition.

Of course, another way in which prosecutors inthe Boston Juvenile Court may attempt to influ-ence a dispositional determination is by their pre-sentation of the state's case at the adjudicatory hear-ing. It is at this stagein the depiction of theoffense and its surrounding circumstancesthatthe court's perception of the juvenile's charactermay be shaped. However, as described earlier, thisprocess often operates in secret and is based uponwithholding evidence from the court's attentionrather than providing it with such information asmay be necessary to formulate a know ledgeabledisposition.

The physical absence of police prosecutors dur-

ing approximately one-half the disposition hearingsconducted in the Boston Juvenile Court stands insharp contrast to the very high percentage of casesin which defense counsel. routinely appears at dis-position. With the exception of the relatively fewcases in which counsel has been waived, defensecounsel representation at disposition is nearly total.However, in terms of impact, it is very doubtfulthat defense counsel's contribution at the disposi-tion stage is very much greater than that of thepolice prosecutors. Considering the importance ofthis stage and the opportunities which are availableto defense counsel to advance the best interests of

his client in a manner which is wholly at one withthe fundamental goals of the juvenile court, hisapparent failure to meet even the minimal stan-

dards of juvenile court practice in unfortunate. Notonly does it represent an obvious disservice to thejuvenile whose future is being determined but to

the juvenile court process itself.In c r ibser call( ins of nineh one diSposItt011

hearings, defense counsel offered spec ific recom-

mendations to the court in only r.ineteen cases.These nineteen recommendations included largeper, enrage cif Co ILIt. sts f<<r 1(11161)(13n* k for L al

studies. Even when specific recommendations forprobation are inAcle. no attention is gis en to theterms and conditions for proloation. In eight addi-tional Lases, defense Counsel merely made a general-pitch- for lenient, y.

The typical "pitch" involves a statement by thedefense counsel alluding to the minor nature of theoffense, the lack of prior in olvementmd often,the suggestion that had companions are the rootof the problem and that the child is not himselfa -bad kid.- Another suggestion made several timesby the deti.nse is that, as a result of his apprehen-sion, the juvenile has now realited the error of hisways and w i!I not stray again. These -pitches- arealmost boiler plate in their content and their deliv-ery reflects little conviction on the part of defensecounsel. They are rarely supported by informationlikely to convince the court that they are derivedfrom .t well-considered analysis of the juvenile'sneeds or that they have any substannai predic tivevalue. On two Occasions follow ing such an appealfor leniency, the judge asked ihe defense counselhow he knew his statements to be true. In bothinstances. defense counsel remained silent.

One example will illustrate the lack of effortdemonstrated by most MIX: attorneys towardsdevising dispositional alternatives or exploringtreatment resources. A thirteen year Al with asubstantial record in the juvenile court was founddelinquent on serious charges of rape and assault.The court clinic report re«immentled a -structuredresidential setting" in light of the serious emotionalproblems cli..gnosd and the violent nature of hisactivities. When the judge asked defense counselwhat he had to say, the attorney made a shortspec( h in st hich he mentioned the age of thedefendant and implied that he had been c orrupted

by an unfortunate choice of friends. Defense Loan-

seers remarks (kart). had no relevance to the qus-tion of the defendant's emotional problems whit hwas obviously what the judge considered most sig-nific ant in determining an appropriate disposition.The judp. then asked the probation officer toinform his about the treatment possibilities thatwere available to the Department of Youth Ser-e ices. Probation could not give an informed answer.The judge then remarked that 1w hated to -pin a

I year old kid with this," but that he had nochoice but to commit. The failure of defense coun-sel to otter any other alternative pre, hided therehem... even a meaningful exploration of the needsof the child and the resources available to meetthose needs.

In only one c ase- --a startling figuredid defensevoice any objection to or controvert in any waythe findings of the probation or clinic staff. In thatLase, defense counsel objected to the probationofficer including a dismissed case as part of thejuvenile's prior record.

The figures compiled by the observer show thatin the large majority of disposition inquiries, de-fense. counsel is virtually superfluous. He neitherrecommends a specific disposition nor even makesa general "pile h" raising the points which mighthe favorable to the defendant. In most cases, about

, defense simply "agrees" to the rec ommenda-dons of the probation and clinic staff, or has noth-ing to say at all. This lack of activity is especiallysignificant in light of the fact that the judgesalways directly inquire of defense counsel if theyhave anything to say at disposition.

It has previously been mentioned that the defen-ders play a minunal role during dispositi4m inqui-ries. They normally seem willing to allow the otherparticipants in the processjudge, probation staffand clinic staffto decide the appropriate disposi-tion. The difficulty of successfully countering theexperts" is compounded by the fact that disposi-

tion hearings do not resemble adversary proceed-ings. Police prosecutors, the natural adversaries. arc

either not present. or are present and silent. Proba-tion officers do not take the stand and testify. They

§51

converse w ith the judge and respond to his ques-tions. Chin, reports are handed to the judge forhis perusal. Iktens counsel has generally read acopy of the report before the hearing, but the find-ings are not openly discussed in court. Clink staffare only rm-clt present tot titat. Sui. h a setting rases

obvious role dititt ulties for the defense attorney.However, it also offers opportunities for advmacywhich have largely been defaulted. A dispositionhearing was observed which followed a three weekcontinuance for full psychological and physicalstudies. The defendant was a 16 ye 1- old boy whohad been invoked in the pm ceding six monthsin a series of wallet thefts from women's handbags.He had no rec ord prior to these six months and nodrug involvement was indicated. After reading thereports. the Judge asked the probation officer forhis recommendation. The probation officer said thatthe boy had informed him that he had an appoint-ment to see about a place in a residential school.but that the probation staff had been unable toconfirm that with the school authorities. The judgeordered a recess and instructed the probation offi-cer to try to get in touch with the school. Afterfifteen minutes, the parties re-entered the court.The probation officer informed that a place was noravailable for this boy because they did not believethey could otter him appropriate services. Thejudge then ordered another recess in order to sum-mon the Dpariment of Youth Services liaison intocourt. After another five minutes, the hearingresumed again. The liaison was given the psycho-

logical report and was asked by the judge to recom-mend a placement. He replied that he would needtime to explore the possibilities and suggested acontinuance for that purpose which was granted.During all of this time, defense counsei remainedsilent w hilt: the court was obviously fishing forsuggestions from any quarter.

The possible effect of defense counsel on courtdispositions is illustrated by the data presented inTable 9. These data suggest that the differentialeffects of counsel type on adjudications, as notedearlier, are also present in dispositions which fol-low a finding of delinquency. In examining suchdispositions in the Boston Juvenile Court during1971, it appears that as a group, juveniles whowere represented by the public defender receivedsubstantially harsher dispositions than those juve-niles who waived counsel or were represented byother types of counsel. These differences arc mostevident in commitments to the Department ofYouth Services-the most extreme of the availabledispositional alternatives. The data indicate thatwhile almost 14" of the delinquent juveniles whoare represented by the public defender are com-mitted, not a single instance of commitment wasdiscovered among those juveniles who were repre-sented by private appointed, private retained orother non-public defender counsel. While a num-ber of variables may contribute to the greatersuccess of private retained counsel (the ability andwillingness to retain counsel may well coincidewith other family characteristics which could have

TABLE 9.-Dispositions in the Boston Juvenile Court for 1971 by Counsel Type (N = 752) a

Counsel

Disposition

Suspendedsentence Committed

Probation probation Filed to D.Y.S. Other TotalNumber Percent NumberPercent Number Percent Number Percent Number PercentNumberPercent

Waived 22 (70.9) 5 (16.1) 1 (3.2) 0 (0.0) 3_

(9.8) 31.

(100.0)Public defender 219 (34.2) 202 (31.6) 114 (17.8) 87 (13.6) 18 (2.8) 640 (100.0)Private, appointed 11 (34.4) 16 (50.0) 5 (15.6) 0 (0.0) 0 (0.0) 32 (100.0)Private, r..itained 18 (43.9) 14 (34.2) .8 (19.5) 0 (0.0) 1 (2.4) 41 (100.0)Other 0 (0.0) 2 (25.0) 5 (62.5) 0 (0.0) 1 (12.5) 8 (100.0)

Th.5 thla ,rr.itirfri, only thq5o t.isns..._. -

for which both counsel 866% of the 868 dispositions recorded for 1971.type and d snos.on r's avdable Thi..e 752 cases represent

66

a positive bearing on dispositione.g.. an apparentcommitment to the juvenile and his problemstogether with the financial resources to gain accessto private treatment programs), the ability ofcounsel to offer the court dispositional alternativesshort of incarceration can be a crucial factor. Toa court which treats institutional commitment asa last resort, the recommendation of effective alter-natives by defense counsel is very likely to gainthe court's approval.

Although police prosecutors are very negativeabout the effectiveness of most dispositional alter-natives which are available to the court, they feelthat they should not participate in the dispositioninquiry or make recommendations concerning dis-positions. They fed that these decisions should bemade by the judge with the assistance of probationand the defense. Any broader role for the policeprosecutor is seen as being in conflict with thenon-advisory position which police officers shouldtake in court. One police prosecutor declared,"Naturally, we think all the little s.o.b.'s shouldgo away [stated in jest I. But seriously, there areother people here to make that decision. I don'tfeel it is our role."

Generally, the judges do not receive a great dealof help from the probation staff at disposition. Theprobation officer has the juvenile's **green sheet"the list of his previous court contactsbut little orno information beyond that. Even the data on priorrecords are often disorganized and the probationofficer is sometimes unable to answer the judge'sspecific questions without delaying and fumbling.It is the practice of one judge to ask the probationofficer if the defendant has ever been convicted ofviolating any law. The judges also inquire as towhether the defendant is presently under thesupervision of any court. If the probation officer isunable to efficiently extract this data from the green

sheet, the judges examine the sheet themselves.Social histories are prepared by the probation staffand submitted to the court only when cases arecontinued for disposition. Dispositional recom-mendations arc made only at the court's request.

67

In many cases, no recommendation is made at thedisposition hearing. Judges often rebuke probationofficers for failing to carry out a recommendedtreatment plan or to secure a placement which theyhad previously suggested.

The judges demonstrate a commitment to thetreatment and rehabilitation goals of the juvenilecourt. Even defendants with extensive prior recordsare often given a third or fourth chance within thecommunity. Faced with a child with a particularlylong record, one judge remarked that he was wil-ling to give psychiatric therapy one more chance ifthere was any hope at all of working successfullywith the youth. The judges :.re open to any and allsuggestions at disposition, but the unfortunate factis that defense counsel and, to a lesser degree, theprobation staff, do not appear to contribute muchat this stage.

It is apparent that the dispositional process inthe Boston Juvenile Court has become routinizedand predictable. There is widespread frustrationwith the lack of effective dispositional oprortuni-ties and the judges receive very little support infashioning dispositions. Although the judges treatcommitment as a last resort and apply it in arelatively small percentage of cases, the majorityof juveniles who are returned to the community,whether under supervision or not, arc receivinglittle more than "another chance" to straighten out.Even where juveniles are released on probation,there is little exploration in court of the terms andconditions of the probation.

More than any other, the disposition stage in theBoston Juvenile Court is marked by a non-adver-sary approach and a desire to reach a consensus ofopinion. The probation officers are used primarilyto provide the court with "neutral" informationconcerning the juvenile's past record and socialhistory. Polic.: prosecutors almost never recom-mend dispositions to the court and the public defen-

der, when he dots make a recc.mmendation, onlyinfrequently will provide the court with usefulsupporting information. In this setting, the judgeassumes almost total responsibility for obtaining

infonnarlon, pniposing alternative treatment plans,recommending cli.oznost it rot edures, evaluatingthe clinic's findings and examining the probationofficer or others who may appear at disposition.Although the judges frequently invite suggeaionsfrom those present, they are rarely torthionung.There is almost no tross-discussion among defensecounsel. the polite prose utter, and probation staff.

The problem of providing effective services tojuveniles who are in need of help goes well beyondthe scomof the juvenile court's powers and thenature tvt it dispositional process. In the finalanalysis. no juvenile court, whatever its intentionsor orgonization, tan at hievc its child welfare goalswithout broad public support for the allocation ofdesperately needed resources. However even withinthe court's rc ate limitations, opportunities doexist for strengthening the dispositional process so

to ads attic the mores efforts in meeting therehabilitative needs of juveniles through thought-ful, informed and responsive dispositional pro-grams. it is believed that the creation of a role foran attorne)-proset'utor at the disposition stage canbe an important first step in that direction.

First, there is no vehicle for the development ofjoint dispositional retommendations int ()king theparticipation Of prosecution,ution, defense and probation.Although defenders often do ((insult with proba-tion ottit ers prior to the disposition hearing andre.:d the t hulk- reports and social histories, there islittle evidente that their role is more than passive.Suggestion, by defense attorneys ((interning pro-

iCil dispttititins arc not always welt by

probation ()k ers. When asked if defenders dosuggest dispositional alternatives, the chief proba-tion ()flit er stated: "Now we're getting into thebargaining situation, It they do it, they shouldn't.There is an xt lunge of information but there arevery few instanti;s where there is disagreement be-

tween the defense attorney anal the probation officer.

Th, [defense am bilet's I have o right of appeal ifthey want to exert ice it." In recommending the

68

active participation of an attorney-prosecutor atdisposition, the Grad/Nes (Chapter 7, in seek

to entourage broader opportunities for the develop-

ment of jointly considered dispositional proposals.In addition to playing an independent role at dis-position the prosetutor is seen as a vital catalyst forthe full involvement of defense counsel.

Second, probation officers should not he cast inthe role of adversaries to defense counsel. However,at the disposition hearing, it is very difficult forthe defenders to contest the information, findingsor recommendations submitted to the court by pro-bation or clinic staff without provoking this veryconsequence. As one defender put it: "With thepolice, we know we are in an adversary role. Wecan handle that and be amicable afterward. Withprobation, especially the older ones, the situation isdifferent. They are not used to being cast as anadversary." Because the public defenders aredependent upon the probation staff for consider-able information, they are not apt to endanger theirrelationship by challenging the probation officerat the disposition hearing. The presence of a pro-secutor at the disposition hearing is designed toencourage a more vigorous examination of disposi-

tional alternatives while at the same time providinga Note( dye "buffer" for non-legal probation andclinic staff whose recommendations are in dispute.

Lastly, the GRiddints recognize that the com-munity's interests in protecting its security do notcease at the adjudication stage and neither should

its representation. In the small number of caseswhere confinement is deemed vital to the rehabili-tation of the juvenile or to protect the communityfrom a substantial threat to its safety, it should bethe prosecutor's responsibility to argue for com-mitment. In the vast majority of cases, however,the prosecutor would be expected to encourage the

least restrictive dispositional alternatives which are

con.iistant with the service and discliplinary needs

of the juvenile.

CHAPTER VI

PROSECUTION IN OTHER REPRESENTATIVE JUVENILE COURTS

Research undertaken in one jurisdiction ( and

the findings and recommendations emanating fromit ) may have only limited api ic ability elsewhereit conditions or expectations Of other jurisdictionsare quite different from the one being studied. Aneffort has been made, therefore, both throughliterature searches and through brief oflsite visits,to determine whether certain common conditions

exist in a variety of juvenile courts which mightsuggest that the findings and recommendationsmade for the Boston Juvenile Court might beapplicable for other courts as well.

Six courts were selected for review: Atlanta,Hartford, Metropolis: Providence, Salt Lake City,and Seattle. For three of the courtsAtlanta, SaltLake City, and Seattlethe review was made pri-marily through an analysis of an excell study.

Tbrc c h a c nilo. Corirtl. Cf,outdr.rtirc Sttail. pre-pared by the Institute for Court Management,University of Denver Law Center in 1972.

Although that study w as not focused on prosecu-tion in the three juvenile courts, it did examineprosecution issues and represented one of the fewrecent studies of juvenile justice which did so.

Hartford. Metropolis, and Providence wereselected because they represented different types ofcourts ( statewide jurisdiction and local; largeand medium caseloads: and different forms Of pro-secution ), which were geographically convenientand were willing to cooperate fully with the on-site

r:11, di. 1, 'hp I:. Iti MUM' nt .1 Lret* r.i.,tertt tire. It

i klentitiol In du. tashion .0 the teeniest tit t icy ,.ttitials. Thearultst. ..t pr ,sett:to.n in tht Mett.,i,olis juvenile l.N tvaimutant ma le at tJie rtotest ials %Ito %ere .1 mrtmg to evaluate the eft a ft..it:rally tuntle1 xPeri-IntILII 1111011;c utor t.

69

visits. It is important t to at the outset that theon-site reviews were brief, were largely impres-sionistic, and were not supported by statistical data.These reviews did provi.e sufficient opportunity,however, to determine whether conditions andproblems were similar to those found within theBoston Juvenile Court. As will be noted in thematerial that follows, althou:th there were signifi-cant differences among the courts reviewed, for the

most part, the findings and recommendations madewith reference to the Boston Juvenile Court weredirectly applicable or relevant to other courts aswell.

A. THE FULTON COUNTYJUVENILE COURT, ATLANTA,GEORGIA=

Prosecution in the Fulton County Juvenile Courtis handled by the equivalent of one full-time assis-tant district attorney.' Without question, as of thetime of the Institute for Court Managem, nt Study,the prosecutor played an extremely limited role inthe court. The prosecutor, for example, has no rolein preparing court petitions in screening cases atthe intake stage,' or in presenting evidence at prob-

abl cause hearings. Further, the investigation ofjuvenile cases, for the :nog part, is undertaken not

by the prosautor, but by the investigation unit of

The Institute for (Anal Management. itrtt frittoriit

(:io-tt, .4 (wit/unwire Stktit 11972.) at 207 -21(i, 233-259.s90 i1 theteinatter rehire,' to as institute Study).

1.1.. at .)0-.If. at ,'its, 211 Tba, latk of review is etch mt.re signifi-

cant in Atlanta than in Boston the Atlanta Polite Depart.

mint virtually no stirtong tit tact's. -OW ptiiity bac

lien to take evtrvtitints. to 'mustily total:. hl. at .2;x.

the probation unit." It is interLaing to note thatthe results of any uasestag,ttaon undertaken are madeavailable both to prose( talon and to defense coun-ser The apparent result of this division of respon-sihility is that the prosecutor is often not preparedfor the Ankh, anon bearings:

And yet the Fulton County itnenile prosecutortt under .k stAere handkap when her primary respon-sibility in this t curt is to try the case someone elsenot under her supers ision ha. prepared. And some-times a Lase is Lalen.lara the day before the trialdire. .111.1 the prosecutor can only do a last minutepreparation job- 'We're hal.) regarding our trials;We.fc often not prepared.'

In addition to the limitations just it:scribed, theprosecutor plays no role at disposition in Fulton

amty." Thus. in summary, the prosecutor hasa very minor role in the juvenile justice process,with virtually no pre- or post-adjudication respon-sibility and little or no opportunity to prepare forthe adjudication hearing. The assistant districtattorney assigned to the wort seriously questionsthe v:Ilue of having a professional prosecutor whenthe role is so limited.' She also complains aboutthe lack of c !ear and regularized prmedure in the«not and expresses lomern both about the extentand na.ure of the streening that takes 'place atintake, the poor investigations of the probationdepartments, and the limited efict tiveness of pro-bation st reit es.' Defense counsel expressed somesimilar concerns; for example, defense counselraised serious questions about the effectiveness ofprobation services, the quality of probation investi-gation, and the informality of the various hearings

-rekrees always find probable (ause at preli-minary hearings even when it does not exist-In addition, the defenders find that many of the

11

rt 211The assistant t Att.,rffil 11,4 n., tees the ttiAl

tarn far itt 1 tat.in C ictyIt +tottitu Musty at :OS.

at 2111111 /ha.

. 29*.At 21i '15.

petitions that are prepared are overly broad.'Some changes have been made to accomodate

some of the complaints of the prosecutor. To pre-vent probation from adjusting too many seriousCAWS, a new policy has been established that therecan be no more than two adjustments on a parti-cular child without a formal filing." Further, achild formally on probation who reoffends must goback before a judge without any possibility ofadjustment.' It is doubtful that such rigid require-ments are really responsive to the needs of improv-ing the prosecutor's role in the court. The prose-cutor has also begun the process of providing someassistance to probation investigation staff in pre-paring petitions and cases, but this is still doneprimarily on an informal basis. After reviewingthe prosecution role, the Institute, among otherthings, recommended that the investigation unitof the probation department should he reorganizedunder the direction of the district attorney, and thepreparation of delinquency and unruly petitionsshould be under his direction:

The legal role of a juvenile court, now well estab-lished, requires a stronger role for the district attor-ney in this court . It makes little sense to havethe district attorney pros' .r. a trial when the

A designation of the charges and their embodimentin a petition have not been performed (miler dis-trict attorney direction. Similarly. it is inappropriateto the put- bait of justice when trial preparation,including witness interviewing and designation aredetermined by court staff rather than prosecutorstaff. It is also unfair to juveniles when petitionsare filed without provision for routine legal scrutinyof police reports to ascertain whether supportiveevidence is at least sufficient to a probable causestandard. We are talking here of relating respon-sibility with authority, and further, of regularizingthe procedures and practices in the interest of boththe child and the rblic. The welfare of our youthand t' protection of our society compel that theprosecutor no longer be a stepchild in the juvenileciairtrt

70

1311.. at 21 t.if LI.. At 2(1K.1'lrr. at 2119.1.1/1.. at 212.IT lat.. at 403. 401.

B. THE SECOND DISTRICTJUVENILE COURT, SALT LAKECITY, UTAH

By statute, the county attorney ( who primarilyhandles c jell matters ) and not the district attorneyperforms the prosecution function in the juvenilecourt." The statute specifying a prosecuting func-tion first went into effect in 1971. At the time ofthe Institute Study, two county attorneys wereassigned to the juvenile court on a full-time basis,and one county attorney served the court on a half-time basis." Interestingly, the county attorneyshave greater responsibility for processing and pre-paring cases of dependent or neglected childrenthan with delinquent youth. In dependency andneglect cases, the county attorney screens all formalcases and must concur that a case has merit beforeit can be filed.'" Further, most petitions are actuallyprepared by secretaries who work under the direc-tion of the county attorneys. County attorneys haveno such role with reference to delinquency peti-tions. The decision whether or not to file suchpetitions is determined primarily by intake proba-tion staff." For the most part, county attorneysneither screen police referrals for legal sufficiencynor play any role in determining whether a petitionshould be filed.' The exception to this is thatcounty attorneys may participate in intake deci-sions related to serious crimes. The primary intakeofficer for the juvenile court estimated that thecounty attorneys are consulted in about 5 of thecases.23 The county attorneys do, occassionally,prepare forms for delinquency petitions, but thepetitions are prepared by secretaries who work forintake staff and there is no prosecutorial supervi-sion over their work."

There is great concern expressed by the county

" Id.. at 21"."Li.. at 21" .7.1x.

Id.. er )1N.21 114.1

Ihrd

2:1I1.. at 21'ft.

ji lbsd.

71

attorneys about their role which is similar to thatexpressed in Atlanta:

'flay prosecute contested delinquencies when theyhate not participated in the screening process, inter-viewed policemen or other witnesses, or selected themost appropriate charge or charm s. Smuttily. pro-bation intake staff do not interview police or otherwitnesses before filing.25

As in Atlanta, defense counsel expressed concernsabout the process which suggest the value of anexpanded role for prosecution. First of all, defensecounsel stated that county attorneys are neededto review referrals to mart on probable causegrounds.' Secondly, defense counsel suggestedthat judges with a strong treatment orientationtended to make social work judgments ( mandatingtreatment ) even though there may not be a legalbasis for an adjudication of delinquency."

Juvenile police officers in Salt Lake alsoexpressed a need for an expanded prosecutorialrole, particularly in areas involving case investiga-tion and preparation, meeting procedural requirements, and establishing criteria for diversion andreferral of cases to the court." The importance ofguidance in this area is underscored by an admis-sion of one officer, for example, that Miranda isnot followed, but "our practices are rarely chal-lenged in court." 29

C. THE KING COUNTY JUVENILECOURT, SEATTLE, WASHINGTON

The Institute found in its comparative studythat the most ads:. nced system of prosecutionamong the three cities, without question, existedin Seattle." The Annual Report of the ProsecutingAttorney of King County for the year ending 31December, 1971 contains the following section on

25 Ad,;11 Id.. at 221.221d., at 221-222.2" Id.. at 261-267.:ti Id.. at 261-264.3' Virtually all of the Institute findings were cormborated by

nne of the Center's graduate students wno worked as an intern'in the King's County Prosecutor's awe juvenile division during the summer of 19-1.

the duties of the Juvenile Court prosecutors, and

the planned expansion of their duties;

The duties of the juvenile Court deputies in 197()

were essentially limited to preparation for, andrepresentation of the state in. fact finding and

hcarings and in jiic tilde delinquency

and depends:my cases. . . . In 1971. after severalmonths of discussions betwe,n representatives of theJuvenile Court and the Prosecutor. a letter of under-

standing was drafted by these two agencies whereinthe Prosecuting Attorney agreed to perform, withinthe limitations of hui manpower capabilities, thefull. iss tog additional functions:

1. Representation at disposition hearings in alljuvenile delinquent y and contributing to delft'.quency cases.

2. Participation in preliminary hearings. proba-rion review hearings. and probation revocationhearings.

Preparation of legal opinions upon requestof the Juvenile Department of the Superior Court inKing County and the drafting of formal requests onbehalf of that department for legal op:nions fromthe State Attorney General;

1. Participation in the juvenile Departmentsstaff meetiogs for the purpose of advising andcounseling the staff regarding legal questions whicharise in connection with the operations of thedepartment;

S. Reviewing on a continuing basis the JuvenileDepartment's field procedures and rendering legaladvice with respect thereto;

6. Assisting juvenile Department personnel indrafting and securing search warrants and warrantsof apprehension;

7. Advising and counseling the juvenile Depart-ment respecting court decisions and proposed legis..

;ado') which relate to its operations, practices, andpolicies;

8. Participation in the Juvenile Departmrntstaff training program and in the developmentplanning of comprehensive in-service training pro-grams by rendering legal advice and counsel to thestaff training officer;

9. Compilation of summaries of all Washingtonlaw relatink to juveniles;

10. Ri viewing all proposed administrative memo-randa and special orders prior to publication andproviding the department with legal counsel withrespect ti

11. P: forming. in appropriate cases, liaison for

the department with the State Legislature, theAttorney General, and other governmental agencies:

11 Administration and supervision of the juve-nile Department's legal support staff, which will betransferred to the Prosecutor's control on 1 January,1972. By absorbing administrative supervision of the'NO Department of the juvenile, that is the han-dling of petitions and the setting of calendars. theProsecutor will have assumed administrative controlof the presentation and prosecution of juvenileoffenses.'"

Although the prosecutor's office may not beeffectively handling all these responsibilities at thepresent time, it is clear from the Institute Studythat it is performing the following three:

1. Screening police reports and interviewingplice officers and witnesses to ascertain whether theevidence which could be presented at trial is legallysufficient to instil) the filing of a petition;

:. Supervision of the preparation of delinquencypetitions;

3. The presentation or prosecution of contestedc:iises."2

72

The role of prosecution expanded in response toconcern over the broad discretion and power ofprobation in the King County Juvenile Court. Priorto the reshaping of the prosecution function, pro-bation apparently had virmilly unlimited authorityto screen cases at the intake stage and this authoritywas often utilized. For example, during 1971. of

4,1 1 1 cases referred to the juvenile court, only

1,215 were filed, while 2,986 were adjusted at theintake stage." To insure some review of probationdecisions it this stage, a new court rule was promul-

gated dictating that charges of 30 specified offenses,primarily felonies, cannot be dismissed or handledby informal supervision without the approval ofthe prosecuting attorney."

31 Annual Report of the Prowuting Attorney of KingCounty, Wa.hingtor. for the year ending Dekember 31, 19'1.At 35 36.

32 Institute Study, at 22i -221.33/1. at 291. Further, of the 1,215 cases filed. 1 i i were

subsequently

341d.. at 224. The rule did authorize proliation to submit thematter to a judge, however, if it disagreed with the decision of

the prosecutor.

The (lunge in the strut cure of isionmakingis now t lr.tr. Prose( tot ots. ntit often t onsult withpolite officers about a tan' mit- to the tune it is

submitted to probation staff. When a Lase rem rtes

intake. the mtake Miter Aso often review s A the

arch a prosecutor to t he k for suilit ienk

Finally, legal reeling is done petition t Jerks

who work under the direction of prosecutors.' Upto now. however, intake staff still can screen cits4.1

not tin the list of 'in six, hied otfenses withoutconsulting prtKlliltiOn staff.

The dim t involvement of prosecution in theseareas is consistent w ith the recommendations of this

report. So is the tats that the court now has fourfull cline juvenile prosetutors.' It is not dear,however, from the Institute Study, whether theprosecutor's ffit e is assuming a traditional prose-cutorial orientation now that it has new responsi-bility, or wliether it is shaping its role to meet thebroader objectives of the juvenile court. At onepoint in the Institute Study, though, prosecutorswere asked to state their philosophy:

Promxating attorneys in the court state a bric!philosophy: Assistance in the protettion of thetommunit. obtaining (nun dherente to regular-;led pre etitirvs ensure that just etc Is .111 in eat hcase and that the system works, and to assist politedetention att.! probation comprehension of Icgalprocolures aria their regularized application in thisinsert& instiCe sysretn!".

It is not clear from this statement whether pro-secutors are motivated strictly by legal concern orare motivated as well by the desire to do what maybe best for the juveniles involved if this wouldbe consistent with the public safety.

Aside from this issue, there is another concernabout the role of prosecutor in the King CountyCourt tvhit I: was expressed both in the Institute

!..:f1 A rettr.,-.1 p iillt dtit yr nuw %.rks t.r the. it.finates the 1.11.ut. lit the 2f) Lis tot. 'Anent

te. in the t...wity Further. pr+ r%et nu unity' p.,111e

.113711.1e Ile eh. rupiltts are ritAted an.i alsohie. t IneetiganAts when they ate needed.

t Id . at Dot mkt St-Rites base esen.j,

Study and by the Center's graduate student whoworked as an intern for the proset utor's office.This tont ern relates to the fat t that the prihet utor'soffice, aside from representing the state in individualtass, is ..lso counsel to the juvenile Departmentof the Superior Court.

The legal basis for the role of the prosecutor aslegal counsel to the court is not apparent fromany authority describing the juvenile court. A Com-missioner of the juvenile court describes the legalbasis of this rule as follows:

73

!soder the Lonstitution and taws of the State ofWa.linigton and Rides ot the !mends: Court, the

PAX ming Attorney is legal advisor to the Courtand legal °triter primarily responsible for lawenforcement in the county.

From this description of authority and from directobservations of prosecutor functions, it appearsthat the prosecutor has a dose relation to the judi-ciary branch of Washington government. A chartused at the briefing shows the prosecutor's office aspart of the judiciary rather than as part of theexecutive, which is where the public defenders areshown.

The section of the Annual Report of the Prose -c utor cited earlier indicates that legal advice isbeing given to the Juvenile Department on a widerange of subjects. From the agreement reached,the court receives legal opinions of the prosecutoron Juvenile Department staff operations, fieldprocedures, staff training programs, policies, admin-istrative memoranda, and special orders. As arelated function, the prosecutor is to serve as liaison

for the Juvenile Department to the Attorney Gen-eral, the legislature, and other agencies.

A quick review of the authority cited by theCommissioner failed to support the propositionthat the prosecutor has a legal duty to advise thecourt on any of the subjects. Concerning the roleof the prosecutor as legal advisor, the statute sec-tion cited, RCW 36.27.020, gives no indicationthat the prosecutor should act as legal advisor tothe Juvenile Department or any other Department

of the Superior Court. Only the board of county

commissioners, county and precinct officers, andschool directors are mentioned as intended reci-pients of legal advice from the Prosetuting Attor-ney's Mite.

Despite this apparent lack of authority, theprosecutor's °Hite regularly gives legal advice tothe court on a is ide range of topics. The Chief ofthe Domestic and Juvenile Division of the Prose-cutor's office receives requests for legal opinionfrom the Administrator of Court Services, whoserves under the Juvenile Judge in the JuvenileDepartment. Topics include such subjects as theuse of detoxification centers by police for intoxi-cated juvenile tv ithour prior court approval, andthe advisibility of the court giving the policeblanket permission to fingerprint and photographjuveniles. When such a request is received, it willbe assigned to a deputy prosecutor or legal internas a research project. Memoranda based on thisresearch will be returned to the court after somerevision as a prosecutor's opinion. Most of therequests appear to come from the office of theCourt Administrator, but it is possible that infor-mation is also given to other court personnel.

In the absence of any authority supporting therole of the prosecutor as legal counsel to the Juve-nile Department, some questions arise as to thewisdom of this practice. It is clear that the membersof the Juvenile Division of the ProsecutingAttorney's Mite are as experienced with the bodyof juvenile law in N,Vashington as any other lawyersand the competency of the advice given the courtis not questioned here. The issue is whether theadvice should be given at all. Potential conflicts offunction seem apparent when the role of the prose-tutor as advisor to the court is placed in the contextof his role as administrator over Lase preparationand presentation, and his role as adversary litigantbefore the court. The prosecutor is in a position togive legal advice to the court on administrativememoranda, which, if adopted, may operate toincrease his power and function. Such has alreadybeen the Lase in court rules, discussed abov(...

The multifaceted role of the prosecutor may

create conflicts for the court as well. On the onehand, the court seeks legal advice from the prose-cutor on questions of law; on the other, the court issupposed to judge impartially the performance ofthe prosecutor in fact-finding and other hearings.

An issue of separation of powers may arise whena Department of the Superior Court asks for andreceives legal advice from the prosecutor on ques-tions of law, including interpretations of statutesand case law, outside the context of any court pro-ceedings and justiciable controversies. The problemis compounded when the Juvenile Departmentcreates Administrative Memoranda on the basis ofsuch advice which may operate to modify legislativeprovisions.

Aside from the problems raised above, theimbalance of function which appears to existbetween the prosecutor's office and the publicdefender's office indicates that half of the JuvenileCourt bar which would be properly consulted bythe legislature in considering statutory revision, orperhaps by the Juvenile Department in draftingcourt rules, is not being consulted. Public defendershave at least as much to say as deputy prosecutorsabout court practice and procedures; they arc prob-ably better advocates for juveniles whose rightscould he impaired by procedural changes.

In view of what has been stated, it appears thatthe prosecutor's office may not have authority forits role as legal advisor to the court, and that evenif it does, this role, as presently being filled, maybe harmful to the overall balance of the juvenilejustice system in King C unry.

74

D. THE RHODE ISLAND FAMILYCOURT, PROVIDENCE

Three considerations were prominent in ourchoice of making a brief on-site visit of Providence,Rhode Island for further exploration of prosecu-tion in juvenile cases. First, unlike Boston, theFamily Court of Rhode Island has state-wide juris-diction over juvenile matters, and referrals to thecourt arc made from cities and towns locatedthroughout the state. The court's broad jurisdic-

tional base has pros hied the court with experiencein handling a caselcuif cc hi, It emanate% not onlyfrom densely populated urban areas but trim non-urban areas as %I.,11 and with an opportunity topima broad perspc tit of the problems of juvenilecourt pr, i.e. talon as thc mac be attc cd 11. %.etv

ins; !ma! conditions. Second. the twrall juvenilecaseload of the Rhode Island Family Court is sub-stantially larger than that of the Boston juvenileCourt. In terms tat ort:anitational. Administrative.and personnel needs. the problems presented bvheavy c melt ad pressures are tomparable to thosewhich exist in the largest hie; -city juettil courts.Third. the Rhode Island Family Court differs fromthe Boston jut ende Court in its regular use ofattorney-prow utors. However, in spite of this, theproblems of developing adequate prosecutorialservices are not regarded as being resolted. In tact,some eat the problems whit h hate been noted in the

Boston Juvenile C.ourt and associated with theabsence of protessionAl pri NIA utors also SU:111 prev-alent in the Rhode Island Family Court. A grow -

ins; concern among the court's judges regardingthe court's prosecutorial needs resulted in the devl-opment of proposal designed to establish a whollynew system for the prosecution of juvenile casesone which has not yet ken successtul in gaininglegislative approval.

Ithckie Island is a small State Ito: aced in the1\4 theastern portion of the country. it has a M11,-1.16011 of under one million people and its largestcity has .1 plipulation of less than 200.000 people.The court has state-% id;- jurisdiction over alloffenses committed by persons under the age ofeighteen. In 19-1. the tours received over 5.000juvenile referrals imolving ssavwardness or &lin-quer), y. In addition. the court re. circled well over

2.000 referrals involving motor vehic le infra( t ions.

Sin( e 1%I. the lour; has also had jurisdic tion over

domestic relat:ons, child marriages and adoptions.

Changes in the court's prat tices during the last

fifteen years hate reflected the growimy formalityand . kers:Iry nature of juvenil courts through-out the United States. From the very informal

-round table- hearings which were utilized priorto 1961, the wurt has taken on an air of prow-(lurid formality not unlike that which charac writesthe criminal courts. judicial robes are worn by thejudges and hearings are «inducted in a traditionalMI11.0111 SLttitig. Although for many years. the

public defender's office has represented juveniles inthe court when assigned, in the years following theGaAs Jet ision there has ken a marked increasin the legal representation of juveniles and in thenumber of contested cases before the court. Thistrend was sharply accelerated when the state's0.E.0.---sponsored legal services agency beganrepresenting juveniles late in 1%9. Their aggres-sive assertion of technical defenses, extensive useof nix guilty pleas, and readiness to go to trial ina high percentage of their t aScs raised new fearsthat thy court was becoming a forum for adversarystrife to the detriment of the inures ability to ful-fil its child welfare responsibilities in an atmos-phere marked by cooperation rather than hostility,These concerns reached crisis proportions when,in hue 1%9, the solicitor of the state's largest cityannounced that his office could no longer continueto provide prosecutorial services in the court. Withthe imminent withdrawal of the city's prosecutor.

the court was fated with the prospect of havingthe state go without professional representationin a very large percentage of its juvenile caseload.This, coupled with the dramatic- increase in con-tested cases, resulted in the appointment of a com-mittee of judges to study the problems of juvenilecourt prosecutiiin and to recommend solutions. InApril 190, the committee issued its report to theGovernor.

It is important to note that in atteinpting toformulate its proposals, the committee's primaryconcern was to create an adversary climate whichprovides for the juvenile the full rar...ze of legalrights which are now available to him while pre-serving the court's child welfare orientation andcapabilities. The committee, in rejecting any solu-

tion which would dilute the applic aut ion of

juvenile's k-gal rights in the court or whit h would

75

fetter d..tt tisk ,t,tiwi in his responsibilitv to pro-vide vigi adt tt .1 t t, stint illiil'ii that the sucvival

of the iutenile 1.11 tilialit" wouldde-pnd in large Ilicaute on the L teatit In 01 Stlitabh:

1,1.0.et utorial rt I. 111 tilt, rtgard. the , oininittie t it tt .!,- 1,LIC 1.! 11111. 11 .1%

atilt bask question that w tire tor taltiatottn torreosons fifths It c \traneoas- to the iltioed tt ith-draw al tit the state's Lirgest itV utter.

Brit tit summit-1,nd, the tommittee ft-to:fl-

in:tidted that an intlt pendent itivende court prose-iltlir ttik t: C%t.1111111(:11 %% hi, h tt uld t outfit, t

all prose., Ink ins in the oat, that it Won Id rctt:itu4 =tat tett flak and hate primary responsibility

for dt termining tthethtr a petition shou hi be filedand tor drat NI.* petitions whit it atc fik-d: that inrea, hill,: this iiint. it Niiiitiht into AL LOMA

Nall kik t 'It the t t I,itttte and alter-natit e opportiminks tor dist Time and treatment;that the otti, (.- should tit due all at ailable diagni isn't

resour,ts to guide it Itl its determinations; that itItould seek .ttlt ith itiVcnile Lind

111% Ititit ti L n, t t:tag L t Tenn i%e rat Otilttlenda-

t ion. for the disposition in the tase; that. where

lit eNal %, It u, Itild ripresent the state and seek

to Note the of petition; and thatat the diroItii t.i.!.!c. it vL otild sunsuit With pro-

bation and cltense and W Make rut mmienda-

non. tt hit h are based upon the rehabilitative needs

of the dolt!.The «minion:Cs proposal for an independent

tilts. , t,urt prose, utter has not been implemented

and an altt manse re« anmendation tor the estab-lishment if these tun( lions within the attorney.general (mitt has al... tailed to gain the approval

of the legislature. and interviews

tthet 11 t. rt re, entle red in the , octrr «infirm

that the urrint manlier and mope of prosecution

in the ,,curt has been a maior impediment to the

i hiet anent the goals set forth by the tot "lmit -

rtc in as ri port Not., ithstanding that professional

ptt,%e, tit's, are intolt ed in the wart f the City

soh, ror ..1 the Ystate's largst t icy did not Withdraw

trot)) the ,'nit I. it i t k at that the broad issues

76

of itivnilv court prst ution have not hcc,n

resolved.

City and town soli, itors appear in court it) task'sarising out of at tion taken by their Inc al politeagent its. In t ases tint 'king the state you t, a repre-

sentatt e tit tilt at tonk'y I4ct1eLirS office t ontititthy prose( ution. However, referrals to the tourtare made hr the various polite agent ics withoutbnclit ot pant ipation by the 10t al solikitor. Allinvestigative work, the designation of itncsss

and t barges, and pre-trial preparation in general ishandled solely be the polite. The soli, km, donot ordinarily appear at arraignments and, as a

prat tit al matter, do not enter a case until a pleaof not guilty is entered by the child and a trialdate is set. Vi'llre pica of guilty or Ppdt-, mat //-

thy, is entered at the arraignment, the slic itorwould play no ride at all.

The abscnte of any signifit ant pose( utorial rolethrough arraignment has been partit utak trouble-

sme with regard to the screening of petitions.Prior t 1971, all requests for iletitions Were di-

re( fed to the judges who would make the deter-mination as to whether a petition should he filed.

Not only did this treat,: an enormous drain on theitidgs' time but was widely regarded by the judgesas an unite( t sary prat nic whit h tt fluid be remedied

by the appointment of .1 itienile court prosecutorwith authority to review all (mutt referrals and todetermine w killer or not to file petitions. Follow-ing a ruling by a State Appellate Court that it wasconstitutionally impermissible for a judge to heara case on a petition which he had previouslyapproved, all responsibility for filing petitions wasremoved from the judges in 197 1 and placed with

the tourt's intake unit. This unit receives all re-

quests for petitions whit!) are made to the Loon

and may, under guidelines established by the court,

informally dispose of certain types of cases w ithout

filing petitions. At present. the bulk of tam:s whit))

arc handled administrativi:ly without petition are

motor vehit le offenses. Although efforts arc king

made to expand the role of the intake unit in

screening out other kinds of minor infra& tions

win( tt chi mit rt,1111,1* turf at HIM t the Chief Judge

estimates tha sit Inc 'Mat aselati tUltitAdItUall) in this ma:uteri, at the present time, sot It adjustments arc vet) mud* thees, pot in. III int,st nom main. vehit le Lases, in the

.16411. tit \pt. Ist 1111iNtalit ptillIoliN

granted 1-y the intake unit.

The intake unit pia. no part in reviewing peti-tion request% for legal sutfitiency nor in draftingpetitions. Attordingl. since !tn, there is nolegal ski-timing it an t oust petitions prior to thetime they are tiled. Allt-n. in 19-0, tht tominittmof judges proposed that petitions should be draftedby a prose( taw. they urged that this he (tone "toensure that ;trot eedings are not invalidated orneedless (Mats t aused bet ause this ky d documentIs drafted k lac persons." Noll, btt aux: of the bat kof any review tot the petition tiling prOteSS, theChid Judge expressed great «intern that tar toomany Itgallv delis lent petitions are being tiled.Although the split itor may subsequently move fordismissal of inadequate petitions, there is a clearneed fur prose( utorial review beton: the petitionis tiled. The latk of a prosecutor to draft and ap-prove petitions is regarded by the Chief Judge asa srtiltis VakIlt". in the tourt.

This c Sew is shared by the Chief Intake Super..visor oho also complained of the hick of uniformriteria.ant irg the various Nuke departments for

making court referrals. While some polite depart.meats sot t essfully screen most trivial Or frivolous(omplaints, others appear to exercise little discre-tion and refer large numbers tit iasigniticant caststo the moult. Also, there is a tendency among somepolite departments to use a shotgun approat hfiringiin.rt barges against tut miles in the apparentbelief that extessive (barging will strengthen thepossibility of a delinquent or wayward findin.Klause the int ow unit has no adthority to inter-cone in most such cirtumstant es, many of theseivritious are tiled as a matter of course. Inform,'efforts to entourage an int raise in stationhousiadjust:mlts have been made by the Court withonly sporadic %tit Less. The presence of a prosecutor

77

at the intake stage is seen as essential to the enforc-ment of unitorin itantlards for court referrals andfor the evenhatitk.c1 treatment tit juveniles through-

out the state.Although prom:tutors play a very limited role

in the earl) stages of jusemle prot ceding., theiravailability prior to adjudication does offer severaltilStInt t atiVantaytt'S. In ttlltraSt to the !Sion Juve-nile Court %hid, lacks lawyerprosecutors, theinitiative in Rhode Island to request transfers ofserious cases for trial in the criminal (otitis restwith the city or mull solicitor. Where such actionis deemed ssarranted by the solicitor, he will pro-teed by a motion to transfer the pnximling fortrial in the criminal courts. These motions areusually made at the arraignment anti MLitt in ahearing on the waiver issue. In Boston, with noproses utor to raise the issue early in the proceed-ing, it does not arise until the disposition stageand only upon the motion of the tou-s.. The lackof early notice that a transfer may be sought isregarded by some as a procedural flaw in the Dos-ton Juvenile Court and is, in part,. related to thefat t that no attorney-prosecutor is present to raisethis issue earlier in tit. proceedings.

Setnd, uhereas it is estimated that ',thirty toforty percent of juveniles in the Family Court enter

of not guilty at the arrigninent, only a smallfratkin of those cases go on to a full hearing onthe facts. In most of the cases, pre-trial negotiationsbetween defense counsel and the solicitor, coneducted under the supervision of the court, concludevcith a dispositional proposal which is agreeableto all the parties. If such an agreement is reached,the not guilty plea is withdrawn and the recom-mended disposition is imposed. Not only does thisprocess of negotiation substantially reduce thenumber of trials which must be held but it encour-ages an early consideration of the rehabilitative

needs of the juvenile in an atmosphere less likelyto be marked by ..-onfiict than a formal adversary

hearing. Although most such negotiations are hul-loed by defense counsel, the availability of a prose-cuting official, if only to provide his consent, is an

essential ingredient in reaching negotiated disposi-tional proposals. It is doubtful whether this desiredprof dupe would be possible in the absence of anattorney-prose,utor to represent thy interests of thecommunity.

In addition to asserting the spit ilk need forgreater proses. unified partit ipation in screening anddrafting petitions, the Chief judge expressed geneeral criticism tont erning both the quality and quan-tity of prosecutorial services currently being pro-vided by the town and city solicitors. In essence,his remarks were not so much at: indictment ofthe ability of the various solicitors who appear inthe court but rather of an outdated system whichis no longer in tune with the evolving needs ofthe juvenile tow. As a rule, town and city solici-tors are said to pt:ssess neither the manpower northe will to provide more than the most minimalsavit es in the court. juvenile prosy( ution is treatedby most as a matter of low priorityone whichdiverts the solicitors limited manpower from other,more serious cases. As a consequence, solicitorsarc often poorly prepared at adjudication hearings--in some (AK'S appearing to read the petition forthe first time just moments before the trial. Trialsare. often delayed by continuances which aregranted at the request of the prosecution and inmany instances. cases are dismissed after three con-tinuantes w hen prose( ution is still not prepared topresent the state's ease. Over twenty such dismis-sals occurred in one year in cases from a singlesmall town. Although this problem varies in degreeatnottg the State's tocc ns and cities t it tit( urs lessfrequently in the State's major city which has afullnme solicitor assigned to juvenile cases and ac :limbic juvenile officer cc ho ac is as liaison to thecourt there is little prospect of overcoming itwithout the treation of a tentral juvenile courtprosecutor's offite. In part bet Attie Of the caseload

pressures which confront the solicitors and theirgeneral inability to provide effective communityrepresentation at trials. the court has felt it neces-sary in the rirst to use its authority to restrain cer-tain defense counsel from filing too many motions

78

or contesting tto many CAWS. In other winds, giventhe limited capability of prosveutiri, the court hasput some restraints on defense counsel to avoidupsetting the adversary balance of the court.

Merely increasing the number of solicitors,alone, will not provide the best long range solu-tion to the Court's prosecutorial needs, however.At the foundation of the concerns expressed bycourt personnel is the recognition that prosecutionin juvenile courts is best performed by a specialistone who has an active commitment to the court'schild welfare goals and who gives high priorityto juvenile court prosecution as an agent for theprotection of juveniles legal rights and the expan-sion of opportunities for individualized treatment.This, in turn, would require the establishment ofan independent prosecutor's office which operatesin concert with intake and probation staff and isfully integrated into all important stages of thejuvenile court process. There is little optimismthat this goal can be achieved so long as prosecu-tion continues to be conducted by the various townand city solicitors.

Although the problems observed in the RhodeIsland Family Court are compounded by the broaddecentralization of prosecution services whicharises from the court's statewide jurisdiction, theyare not unique to du; jurisdiction. They are typicalof the growing pains which have been experiencedby juvenile courts throughout the country in thepalt decade. What is noteworthy is that the juvenilecourt judges in this State have long concluded thata key to the preservation of the most cherishedtraditional values of the imenile justice system liesin the creation of a new and extended role forprosecution. Expanded prosecution services, it isbelieved, would not only provide better community

representation in meeting the growing number ofadversary challenges, but would reduce the worstexcesses of adversary conflict by emphasizing diver-

sion, negotiation and rehabilitation. In the experi-ence of this court, providing "more of the same"is not the answer.

E. METROPOLIS

As noted earlier, Nktropolis is the ficticiousname of a large eastern city. It is named this wayat the request of city officials."' Changes have alsoken made in the names of the various agent lesinvolved to prevent identifitation of the city.

The es aluation that follows is noteworthy notonly because it reflects conditions and problemsthat are tommon to Boston and other juvenilecourts. but also because it illustrates that laudableobict tit es for new juvenile prosecutor programsare meaningless unless a firm tominitment is madeto implement them.

Vntil recently, prosecution in the MetropolisJuvenile Court !lad een provided by polite -pro-

secutors. After determining that the elk s. t of Gathand defense ,outisel had been to create an imbal-ante in the court, a Iecial tommittee urged thatan experimental prosecutor project be developed.Under the initial design, the projet t was to avoidthe creation of a -full-scale" prosecutor's Mite.

The intently delinquenty proceeding is notintended t.) he entirely like a criminal proceeding.While it i in some respetts adversarial it has as a[Witt!' gt 44 : assure the most commit tive twatmolt program for thilaren identitied as needingattention. rather than bring abi.ut the punishmentof the guilty. It is recognveti by persons intolvvilin the jut rnilv C llit that its protesses do not in allcasts math this goal. Hut it is also believed that thisgoal should continue to be sought. and that whole-sale adoption of the criminal process is nut com-patible u Oh this effort. This in turn requires thatthe advikate fur the pet nit Met% whether ... a publictitit ial or a private Hereon. have a different funttiun.mint that ttf the pc, Net weir."

In line with this view, it was recommended thatthe juvenile prosecutor ( who would operate with

1" Thu. int.am.mn thi. .ekti41 ua. ttgoully thumI1V a tlitnbt -t the ( enter stiff %Op, AA, AuAting the an.mem.... 44 the etist-tant-mil tat entle pr..lett whithhal ht ere hen [FAA Atter it %.1. 4...mplitej in the tall

uct malt to th att.1 it %.1.:k.firtnued A tut. ctaivatit,n 4 the ph nett i. tt.t% tItIif%4V.

tt ritl ft4n Mtt.0,:p. 11:mming(.4nm:flee Rtvfrt.

79

the Office of City Attorneythe at y ith essen-tially civil duties ) undertake the following func-tions, primarily in juvenile delinquent y -typek arcs;

I . Pr/ft-int./L. ten t atilt,'.

The juvenile proses utor should develop legalguidelines for the mc of intake officers in tonsitler-ing recommendations to file petitions, and thejuvenile prosecutor should be empowered to reviewcases of alleged juvenile delinquency whith arereferred to court by the intake Miter. If the juve-nile prosecutor determines that there were insuffi-dent facts to support a petition, he should orderthe l'iLit to be dropped.

2. Pripantlicol the paitititt.

If the juvenile prosecutor determines that thefacts are sutfitient to give the (owl jurisdiction, heshould authorize the preparation of a petition. Thejuvenile prosecutor should control the form andtntent of the petition; the role of the petition t lrkshould be limited to typing the document itself.

3. Laigati:c frohtifinsa. Fact-fimlin btarings.

The juvenile prosecutor would represent all peti-tioners in fact-finding hearings where the petitionalleges juvenile delinquency and would performtraditional activities interviewing witnesses,m irshalling and presenting the direct case, cross-examining witnesses and presenting briefs and oralarguments on legal issues. He should avoid caseswhith originate as PINS or, as a rule, neglect casesto assure an experiment of manageable proportions.

h. Marino rot POthOld.

Advising the Court with respect to remand ofthe child to a detention facility pending the disposi-ticm of his case can best he performed by a proba-tion oflic er.

c MA/wit/ow/ hearings.

Preceding paragraph applies here as well.12 Ali

d. Hearing) hn carioN f prohatiorr andparole.

The juvenile prosecutor should screen allga-tions of supervising probation officers to determinewhether facts arc: sufficient to constitute a violationof the terms of the child's release. If the facts aredeemed to be sufficient, the juvenile prosecutorshould be responsible for presenting case at therevocation hearing,

e. aPet,,fcosrt rtsidution

The juvenile prosecutor should be empoweredto play a role in the resc3lution of cases prior to theactual court hearing. Given the civil nature of thehearing, it should be possible to experiment withthe use of pretrial discovery procedures whichwould point toward disc leisure by both parties.

t. ndar math: ge tote Ett.

The juvenile prosecutor should be responsiblefor the production of w itnesses and records as wellas for working Out with the child's lawyer neces-bay adjournments or other administrative matters.

I..4d t foletifm.f.

The juvenile prosecutor should be available tojudges of the juvenile court to conduct investiga-tions and studies which would assist the court inperforming its functions.

This statement of functions was followed closelyin the project proposal itself except that the caseresponsibility of the juvenile prosecutor's wasexpanded.

In summary, under the proposal, the office ofthe City Attorney was to allocate its resources tojuvenile c aces (as opposed to family offenses, sup-port, paternity. etc. ), was to adopt the treatmentOrientation of the Juvenile Court rather than aprosecutc.rial" orientation, and was to play a vital

Tole in the following areas: I ) screening cases forlegal cuff( it:my and drafting petitions; 2) partici-pating in *Altos to resolve approp.iate cases prior

bcating and experimenting with liberal pretrialtl .,so ty to en, outage pretrial resolution of cases);and, ; responding to motions and preparing and

presenting the government's case in all fact-findinghearings. On the other hand, the juvenile prose-utors were not to interfere with probation func-

tions at intake and at disposition. Considerationwill now be given to the project's response tothe stated objectives, design and scope during itsfirst year.

1. Screening cases for legal skfficienc and draft-ing pditions. Prior to the commencement of theexperimental project, the intake officer sent allcases not disposed of at intake to a petition clerkwho prepared the petition. The danger of this sys-tem was noted by the Metropolis Planning Com-mittee in I969:

[Alt present the preparation of the petition isleft entirely to the petition clerk. like the intakeofficer, the petition clerk is not an attorney, and yetunder the present system he is given the complexlegal task of relating fact to law. The result is thatmany petitions are legally defective, and must eitherbe redone or dismissed by the court.

The City Attorney, therefore, stated that under thisproject, the juvenile prosecutor would assume re-sponsibility for screening juvenile delinquencycases for legal sufficiency and drafting necessarypetitions.

This important objective has yet to he achievedeven after 14 months have elapsed. As pointedout by the project's own final report, except inchild abuse and sex crime cases, project attorneysare not involved until after the petition is drawn.City Attorneys, therefore, normally do not becomeinvolved in a case until after they receive an onion-skin copy of the petition.

The City Attorney is not happy with thisarrangetr. ..nt. According to his final report, juvenile

prosecutors are often required to dismiss, amend,or withdraw petitions since 20-50% of the peti-tions drawn by the court clerks, who lack legaltraining, require amendment or withdrawal.

SO

it

13The pnbject director stated that project attorneys are alsoint:0%yd in i&clinn 'hafting in hotnitides and other serious& rimec

It is not clear from the final report ally theOffice of the C itc Attorney nor assume theresponsibility in this arc as it sp., !tid it uouldtio in the proposal. The director cot the projet t sug..gesti.d mo reasons: I the responsibility fordrafting petitions is currently built into the uniontitntr.hts of petition clerks and it %% ill be thitit ultto take the lob acsa troth them; and 2 w the ..aftdoes not haw enough time availably to screen allass for legal tens V and to draft petitions.

The projt t .lire. tor did i }loutvt, that he %%asin the pros es. of atte mpting to adapt district ;ator-ney complaint forms into juvenile delinquencypetition torsos as .1 guide for police officers andc(wurt personnel.

Interestingly, the City Attorney in his finalreport, although he does not explain his failureto assume responsibility in this area during thefirst p...kr, gAes high priority to re-retition rem-ing, ases for legal suflit lent y and to assumptionof petition drafting responsibilities during theswim! year. Although t% ithout question there is anevi tin. screening and for juvenile prosecutors toassume ri.sponsibilit for pre-petition screening andfor petition ,fratting, it must be assumed c ith mimeseritiusness of purpose. During our obser.ations it:the juvenile tourt. %cc: had occasion to rec sewnumerous petitions that hail been subjected to

ist -, etition sc. rixn ing by juvenile proses niters.Many of these petitions %vete defective and steps%%ere not taken to correct the defects unless objec-tions %%ere LOKd by the public defender. Further-more, several juvenile court judges %pet itit

tonuncnted that the metal! quality of petitionsWAS horrendous. In other words. if the City Armor-ney ASStirneS this new responsibility. it will be itty. CS

sary to direct more staff and attention to this effortthan is e.iclent in the post-petition srekning ofpetitions for legal sufficiency.

2. Pailit-tpatkw ',di to n h appropriate4 att. rtor 11 /et.trllt tassn e 4)0in:until! tc ttbh he r.d pre /rid/ dt.t tr, neithrd,:i trialrci,;hdr m ,,f e IQ F. As noted earlier, one of the

differences that as to exist between the

81

juvenile Prost% utor Program and the traditionalprosecutor's Mite %%as the goal of having thejuvenile prosecutor participate in the juvenileCourt's-objective of "assuring the most construt-the treat:W:1U program for children identified asneeding attention, rather than bringing about thepunishment of the guilty." Based upon the projettproposal, juvenile prosecutors could assist the courtin achieving this goat in several was the mostimportant of which include: I ) developing guide-lines tor the use Of intake officers in consideringrecommendations to tile petitioir; 2) encourag-ing pretrial resolution of taws; and spec ifically.

t stimulating settlement of WWI thrcugh liberaluse of pretrial discovery procedures. Althoughjuvenile prosecutors potentially Could have playedan even broader role in achieving this goal throughdirect participation with intake and probation per-sonnel, lack of expertise by law 'Alters with treat-ment alternatives, and limitations of resourceswithin the project resulted in restricting the juve.Wile prosecutors' role in diversion of eases andtreatment concerns to the thre objectives dem ribetlabove.

As far as Lan be seen from interviews andobservations, no real effort has been made inMetropolis to at him .any of these objet rives. Infact, in some instances, conceried efforts havebeen made to prevent these (4.1jes rives from kingachieved. For example, there is currently a ratherfirm office policy witl:n the project against pre-trial discovery in juvenile cases." We were in-formed that although juvenile cases have thecharacteristics both of cis it and criminal cases. inthe area of pretrial discovery it is "our positionthat rules of criminal procedure [which are farstricter in the area of pretrial disttweryj. shouldapply." " The project director acknowledged thatthere has been disagreement over this issue withinthe Office of the City Attorney, but that the incon-venience of responding to requests for discovery,

hth ItV, atth pri.114t 41414,1 14 it 411 the 1. 1:1 111 it 1.11 Oct 111"1%1,14 114.1 t 111 1111 1114.111 t44,11.1

I.. Ma

among other things. has turned the tide againstpretrial dist ()very. The projec t dilutor also notedthat the judges are aware of the tact that juvenileprosecutors have virtually no clerical help, andtherefore, are generally supportive of their rolls-tante to pretrial discovery.

Of ivssibly even greater significance is the tat tthat the iusenile prosetutors, with few exceptions,do not attempt to resolve cases prior to hearing.The projett director stares the "plea bargaining"type negotiations make no sense in the juvenileCourt as -we have nothing to offer." He didmodity this later to say that some drug-related easesarc resolved prior to hearing. &seral reasons weregiven for the project's resistance to preheatingresolution of cases, preheating stipulation of facts,or prelwarine disersion of cases. These reasonsappeared to he as t staff cities not. havethe time to deal with case.% in this fashion; 2)juvenile prosecutors are not equipped to divertcases intelligently; and 3 ) public defenders areunwilling to settle cases in advance and will putthe government to its proof. Regardless what thereasons may be, it is generally acknowledged byjudges and others that the lack of preheating con-tat t between public defenders and juvenile prosecu-tors has had several harmful effects. The mostsignificant of these is that full hearings arc requiredin far too many cases. Many of these CAWS shouldbe remit ved and diverted without an adjudicativehearing; others should be resolved through pre-heating stipulation of facts and the possible useof suggested consent decrees. The lack of pretrialcontact also has meant that opposing counsel aretoo often not familiar with the facts of a case orwith the: child involved.

juve.nile Gain judges are now in session aninordinate length of time every day. wrapped upwith hearings. many of which would not be neces-sary if priority were given to attempting to resolvecases or at least to determine what factual disputesor disptisitional alternatives really exist prior tohearing. it is ret ogniied that this would require a

82

different orientation by the juvenile prosecutorsand probably different personnel and training as

) and a change of attitude by the publicdefenders. This change of attitude would undoubt-edly come, however, if it were demonstrated thata substantial effort was being made prior to hear-ings to resolve those cased which do not belongin court or those cases in which the facts or possibledispositions are not really in dispute.

If priority were given to this area, the juvenileCourt judges could devote their attention to casesin which hearings are really essential. Since juve-nile prosecutors haw taken no real steps to getinvolved in case resolution at a preheating stageand they have systematically resisted pretrial olis-

cxmery to date. it is doubtful that the Office of CityAttorney would. voluntarily change its currentmethod of using juvenile prosecutors.

3. Preparing ,roof presentiNg the Jou mmi orscase in faa-findi: itcdring.f. According to theproject director, the ceisic objective of the juvenileProsecutor Project is ) prepare and present casesin a professional me iner. The project directorpointed out that gh, n resource limitations at thepresent time, this is what his (ace is striving toachieve. Although he feels that the project is begin-ning to achieve this objective, the project directoris concerned about several problems he constantlyfaces.

First of all, the project has virtually no clericalstaff and this has been a constant annoyance.Secondly, no funds are available to hire an in-houseinvestigative staff. The project director noted thatonce the police department makes an arrest, itconsiders the case closed and is typically unwillingto allow its detectives to continue an investigation.Only when pressure is applied are detectives madeavailable. What this means is that juvenile prosecu-tors either are forced to undertake their owninquiry or to forego necessary investigations. Thelatter course is often selected. The project directorsaid that, like district attorneys offices, his officemust have its own investigative staff, particularlyto investigate serious juvenile crimes and child

.:hose and st*Ntlti abuse a aces. rurthermor, anagreement must be re a, he d with the polite depart-ment to allow &woke. to eontinuc theirgamins in certain eases.

After tee ing this o% et.% ot the !voice t. twoand on -halt days were spent in two different ourt-rooms. During this period. we observed a range Ofeases. at !Cast itstir juvenile ',nista weirs. and haddisussions s ith seral ot the judges.

In %irtuall all ee11 that were observa thejuvenile pi-Ilse:tutors sere poorly prepared and pre-sented iv:. in a sloppy fashion. In 'many .ases,the jthenile prosceutor restric ted his role to askingthe pollee witness for his name and shield numberwits! then asking him w hat hapisenecl. If points werenot .leas. or it objeetions were made, it was nor-mally the judge and not the ju%enik prose( utorwho intern. nett.

One panic ular ease dramatic ally illustrates thispeiint. A juvenile: was e hargvd with ixissession ofstolen property and loitering. (This. incidentally.WJS one of many eases where the petition was im-properly drafted. i A pollee ouster testified that heobserved. from a distante of S feet, one youth showa glassine envelope to another youth and thenreturn it to his pocket. When the otlieer approac hedthe two touths, one fled. The °filter then testifiedthat he reached into the pot kct of the youth whohad the ens elope and reinowel it. The juvenileprose, utor then attempted to intrekluce a laboratoryreport establishing that the envelope contained asmall quantity of heroin. The public defender°Ince reel to the introduetion of the report sincethe heroin had not been brought into court. Healso strongly suggeed that he would oppose theintroelue tion of the heroin on the basis of an unlaw-ful %card: and seizure. At this point, the juvenileprosecutor essentially withdrew from the protect!.ings. He remained seated quietly while the judge,in etfeet. had to play the government's role torooky the objection. The judge finally Jet ided toeontinue the t Asc. and order the witness to bringthe evident e into eourt on the next hearing elate.

Atter the ease was continued. the judge turnedto the observers and said, "Isn't this awful." He

83

also stated that the juvenile prosetutor's presenta-tion for lack of it was painfully typit al.

In the other tourtroom which was observed, thejudge became angry on several occasions becausejuvenile prosecutors t and public defenders as wellwere law or were totally unprepared to presenttlir tases. The judge was rank ularly angry aboutOne case in which the juvenile prose. utor wasunprepared to deal with a neglect case whit It wast years old the did not even know how it hadgotten on the calendar

The judges, in. general, arts highly critical ofjuvenile prosecutors. One judge said that it wasridiculous to have the City Attorney's Otliee pre-sent serious t rice, sot h as homicides since they arenot equipped to handle them. He said that assistantdistriet attorneys should be brought in to try seriouscases. Ile then asked, "Would a district attorneyassign a new lawyer or an older reject to try atomplitatcd case." Ile finally commented that thejuvenile Court is a garbage bin of the system andall agent ics scn to assign their worst remould.Other judges suggested that the City Arorney didriot have any idea what the juvenile Court is allabout and this was redet teed by the performanceof the juvenile prosecutors. Still other jutiges com-mented that since most juvenile prosetutcirs weredisorganized and generally unprepared, they simplyignored them most of the time.

Surprisingly, even with all this being said, thejudges all wanted to retain the program. Most ofthe judges said that they had expressed support forthe program in a recent survey that had ken con-ducted Imause the juvenile prosecutors. for all oftheir faults, are a substantial improvement overwhat existed before. They also indicated that asmall number of the juvenile prosecutors werequite good.

In summary, our own observation:: and inter-views give a bleak picture of the area now beinggiven priority by the projectthe preparation andpresentation of eases. Cases, in general, are poorlyprepared and little skill in advocacy is shown. Per-sonnel seem, for the most part, to be of question-able quality. When this is combined with the facts

that the City Attorne has provided no investigacite and % irtualic no t lethal stall. that staff havenot yet vs en begun to bct t)111t: illvitI%kI in othercritical areas such as petition 'kitting., that stafftime is being in' teasingly tommitted to nonjuveHilt caw%. and that the platIllitl training programfor the project has not yet even bteun, the pit tun:bet omes t ct.n more dismal.

Ure asked a lay offit led in the City Attorney's(Mite w Itt the qualtq of personnel was so low inthe Jut enile Prose% utor Pniett. li first deniedthat this was trim.. Ile tht:11 knowIutlgt.t1 thatthere was a ricrsotintI rrobittn. but that this prob-lem was widespread w ithitt the (Mite tit CityAttorney. -It is hard find plat ter for older lawyerstit marginal quality. and it is hard to find goodrt ting last uses tt ho are interested in the JuwnileCourt Tilt re is an MIK:nut unarm thetlt .. aboutthe Jutentle Cthirt. Sktiltti adtot ate. %timid wantttt ttlatHilt Ant &Writ t .Uttttncts anti clot juvv-Hite rfosvt aasts..

lk insi,itti. however. that the project had madegreat strides in one year anti that the Offite of CityA nt cu. t w as t t gnmitted to t ont in uing the programon an ongoing basis. Another °flit i,tl, how ever,sw:gsted that tl City Attorney will continue tog w ott,it the pro, t l status.

Thus, the turrent assessment of the Metropolisjuenile Prttstt cut?). Projet t is that it is mit meetingany of the ohjet fives set out tor it %err %di for .1variety tit ream ms. mime oil whit h are t leak. politi-. al. It multi also appear that there Is little hopeft it suiproitemtnt finless substantial t hanws aremade in perm innel and prt 'grain ttIteht and .t

trOnge. ttinlnlittnent to the juvenile proset utort on, cent is made by the City Attorney.

t or pi% gtati,,e II /4p

f.mid tni tit I, athi to

rat' :;t frr lq:C ilk:, lit tic. It is extretne:ytiitlit tilt to assign a role for gocrnment representa-tion in the Nittropolis jucenile ( :ourt. since tau,In fit in tutemles alone range from minor 'nis-i hict to 11,6 etas Vi'ithut question, there is aNuItatitial need tintrging for got ernment wive-

84

sentation in a narrow legal sense since proceduralsafeguards for juyniles are spantling substan-tially: there must nos. be .t valid basis for taking.1 juvenile into t unto ht: petitions must meet therequirements 44 trittunal informations; illegally-obtained evidente tannin be used in delinquent yhearing; juveniles cannot detained prior tolitaring unhout (JIM for such detention I wing%limn, eft. Therefore, government representationis needed to ensure that all legal a id constitutionalrequirements are met in vac II caw and also that allcases are prepared and presented in a skillful.Lawyer -like fashion. This function will unthiubttilycontinue to expand as retiiiirements may scionemerge for preliminary hearings. for more liberalpretrial Cry. and for more elkaInStne atdispositional hearings. Arguably, this Punt thin isno different than that played by a district attorneyin triminal t AK%

Hut there is a strong sense that the role of agot-eminent lawyer in the' juvenile Court must Itobeyond this traditional legal role since the overallgoal of the juvenile Court is to assure the mosttonstrut tire treatment program for children iden-tified as needing attention. In order for governmentlawyers actually to rani( irate in the achievementof this goal, it may well be necessary for them tobet time ktumldgeable in treatment alternativesand to work at tively with police, with probationoffiters. and w ith public defenders to make all vitalinformation readily available to necessary partiesto facilitate resolving these casts in advance ofhearings when it may be in the best interests ofthe child to do so. It may also mean opening updispositional hearings to probe more deeply intotreatment alternatives when there may he validobjections to dispositional recommendations. Inother words, government lawyers can best assistin at hieving the juvenile Court goal by developinga concern for disposition. We are not suggestingthat juvenile prosecutors should become or replaceprobation officers or sot ial workers. We are hope-ful. however. that they will use their position andintlueti' c to: I i ensure that only legally-suffit lentLases are atijudit aced; and 2 ) to ensure that cases

are rooked in the best interests of the treatment titthe Add consistcia with apiloriate concerns forpublic satety. litsc: obit t tat.'N t.tnntit be met aslong as juvenile prosecutors tail to:

Pros ide dirt t l;uida a to rt)tit tin law ittfilrte'-ttletit poli, v toward imendes, on legal require.mons, and on stationlic Rise diversion of t art s;

Prepare guidelines tor intake ottiters;

Encourage preheating rcstilutpai of AKS eitherthrouelt diversion ot cases or through proposedconsent decrees through liberal discovery andinto-at tion tt ith law guardian and probationstaff;

Lttectit eft in estiate and present tares for allfaLt.tititling hearings t in, hiding taking steps toensure that statutory presumptions againstdetention. .. are ttillou et! I and attempt toagree w ith law guardians in advance of hearingw hat facts remain in dispute; and.

Participate in dispositional hearings whenunderly ing fat is used to justity disposition arein dispute or dispositinal alternatives are nott Itarly defined.

F. CONNECTICUT JUVENILECOURT, THIRD DISTRICT,HARTFORD

The Juveni!e Court in Connet tit ut is an inde-pendent statewide tow system. The Hartfcird Juve-nile Court has jurisdiction over the Third District,one of three distric is into which the juvenile Courtjunsda non is divided. lath juvenile Court Districtlus two judges; one of the judges in the ThirdDistritt is also Chiet Judge of the entire Statesysteat.

Under the present system in the 'Hartford Just-nile Court. the prosecution function is allocatedan ong threes different levels of personnel: proba-tion officers perform the great bulk of prosecutionfunctions; lawyers from private practice areassigned to serve as prosecutors (advocates") atcertain stages of the very small number of caseswhich are contested. anti sometimes consult on

SS

utile streening in uncontested t aces on an al huebasis; judges set certain prosecution polit le s. andsometimes make st. wetting des Woos in part it ulartaus. *MN of the ink Of lawyer-prosecutorsunder the Hartford system tan generally be c hat,acteritd as narrow. They are given functionswhith require tethnit Ic.gal expertise but areusually tut off front Jet isions requiring, the exer-cise of policy - laden "prosecutorial discretion." Theprokssional prosecutor is Ma one might say.almost as "hired gun." c loosely confined b poll( iesmade by the judges and probation staff.

Initial screening decisions are made by the pro.tion tascwouk supervisor, w ho receives all refer-

rals by mail. He screens out CAW; on the basis bothof legal suffit tent y ( whether the referral. by police,school. or other source, contains tactual infonna.tion unlit lent to establish the elements of a cielin-quenty offense and on the basis of suitabilityfor Court handling. If the referral source has notmade sufficient efforts to resolve the problems ( byrepeated offers of non -court services, etc.' thenminor 4..1S4.1 will be referred back even thoughlegally sufiident. The intake philosophy is that theCourt is a "terminal agency" for tr. . only whenother resources are clearly unable to cope with theproblem.

Delinquency referrals whit It are not rejet tett by,the t Atm ork supervisor are assigned to a probationofficer. who summons child and parent to an initialinterview. At that interview, where 95 ri of "new"children are not represented by counsel, the partiesare notified of their rights. and the child is asked ifhe is willing to admit the offense. If the child admits,he signs a "statement of responsibility." The pro-bation officer then has the discretion to handle thecase nonjudicially (by dismissal with warning,"adjustment," or "non-judicial probation" for athree month perkx1). Certain offense categorieshave been determined by the judges to require

17 -1)e1 inquency" tc a vary hum,' category in ronncititut.in. Itt. hug a Ist,..1.1 range Ski MM.( itnittat ttottdutt 'Chat i. notpeat.ne PINS- t afro )q The pox elate in nettle. t'a Int h Ale prswt utoi in the state Attstilt trIlt.tIN Mit t

II'a nviegsgatv.i.

judit ial handling ( /.& roset tit ion s . whetherdenied or atlinitti .1. it there is a lega14 141114-iont:este. Tht.se so-tailed offense% int tildet riffle% t violen,e, drug selling. motor %chideoffenses. shoplifting. .1(1,1 hildren referred toCourt more th.ati tu or time times. Still.of all delinquent v .1sv% processed by intakeare hantikd utsn jutlt,ialIv. Adiit ates-haVe nO t °Mat t a till Ut it t airs. In mime taws,even it the hid admits the offense. the probation°truer mill &title that the taw merits juditialhandling and %%ill draft .t petition and return thetam: to his 41,4A ork super% isor tor appro% al. Nor-nutty. atlyt,ates have no tontatt %kith thesetunti fed I prse,iitions: the probation otheruho made the intake tie. ision tunttions as pros-ecutor right through the disposition stage: ngotia.ring with tli.tense tounselind amaring at deten.tit in. ad hh( xi( in and dispt in hearings. In someinstances. houever, the taseu 4 irk siiptsvist)r willLis:sirt: .4mLrning the petition or legalsilt& lent y tot the taw. Ile will then tonsuft withan advik ate. usually b telephone.

In those vast:. where the third denies the offense,the probation otliter has no thoite but to refer thetau baitk to his t.iskork sucrvisor for assign-ment to an ad% titan% All WItt:Stiti L.I4C1 intiq14%1,c:tuts:a by The maiiir star~ tif pro.tessional proset ution thus ,tinsists tit the tonic:sit...1portion of the 25'; of tie hntluent y l aItt. hit h arejts.iili.tlly LiOdic .1. Although te obtaim..1 no esti-mates. this 114 41ably onst ut es only ..me It) or

ent , tt all del in, wen, y t ases , pied bytht..hAvnile Hirt at intake.

Ad%ch Mt.'s are assigned by the t .1%es% t irk supvr-

Sisor from ai list tontainint: over ixty names titprivate- I +rat titioners shit hase inch( act! their inter-est in king assigned to represent the state or thedefense in jut mile taws. and %% Ito have been"at k cptc.ti- b the total lerk as qualified. The su-pert isor assigns defense t tiutl.el from the same list.%then the %had or parent requests Lotinsel. I low*

II. ; ! !:.,t, 1' fishet: :4.. -

'he t . : .. 'Ott c t tht In' f itt c

86

ever, the judges have set the polity that no lawyeris eligible to be assigned as an advocate dn./ as adefense counsel in the town furthermore. a pokeyexist., to appoint as *Advocates only two or threescelkicialified practitioners. In fat ta an estimated

; or more of the cases assigned to advocatesare assigned to three Hartford practitioners. Allduce are engaged in the general practice of law;only one of them does substantial (privatelyretained ) criminal and juvenile defense work.

When an admate is assigned a case, he reviewsit for legal sufficiency. Some advocates also screenass for **prosecutorial merit" beyeaul legal sutii.

k ient y. and may advise against prosecuting trivialoffenses. It probation persists in wanting a petition.they ec ill refer the dispute- to one of the judges forresolution. An Am ate's approval of a tit*: is oftenconditioned upon the conduct of further investiga-tion. which is generally assigned to the full-timeinvestigator attached to the Court. The advocatewill prepare the ease for trial, including the inter-viewing of witnesses, often in his private: lawMice. in advance of trial. Although he will fr-quently engage in discussions with defense counselprior to trial, most "plea-bargaining" by defensec t iunsel takes place with the probation officerMore a ivtition is filed. Once the petitkm Med,cases are virtually never diverted prior to adjudi-cation. The only possible result of post.petitkm"bargaining" is a decision to admit the allegations.Advik ate% tin tiftt appear at disposition. however.so that if ektense counsel's consent not to contestthe petition is eonditkmed upon some understand-ing as to dispositional recommendatkms, he willbase- to deal with probation as well.

In prat k al effect. participation of advocates isgenerally limited to only two stages, in the han-dling of contested cases: screening and filing thepetition, and adjudication hearing. They have norole at bind-over jute lings, simply bee ause bind-ewers "never occur." Ads-mates do not appear at

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t t %eh .st their tt tAt n suds 4.oes.

detention hearings unless the child denies theoffense, in which t.tSe a probable c AUSe hearing isheld and the adcck ate participates. Pretrial motionsalmost never are madein part, the result of an"open tiles" discovery policy. (The defense has fullaccess to all materialpolice reports, etc.in thepetitioner's file. Nor has an advocate any role atappeal, because appeals are not known ever tooccur. The advocate's role therefore normally con-cludes with the adjudication. However, an advocatewill appear at probation revocation hearings if theyouth denies his alleged violation of probation.Advocates have also appeared at rare collateralattack hearings.

The ing c riticisms about the role of prose-cution in Hartford were made to center staff byparticipants in the process.

I. Intake screemirtg.

a. EffiCittIC). AU participants agree that theintake system as a whole does an effective job inscreening out trivial cases and cases which mightbe handled more satisfactorily without adjudica-tion. The sole possible (Mt gluon here relates to theinclusion of shoplifting among "mandatory"offenses for adjudication hearing, but this is seenas a question of judicial policy, rather than in di-ciency of intake.'" But several participants staredthat the initial intake screening by prob tionprior to the time an advocate enters the caseisinadequate. Many trivial cases are said to reach thestage of initial interview with child and family.Defense counsel may then enter the case, and haveto "waste" time convincing probation and/or anadvocate that the case be dropped. (One can onlyspeculate on the extent to which inadequate casesare "admitted to' by juveniles who are not repre-sented by counsel, and then either handled "non-judicially" or prosecuted (as uncontested) without

The t htet ittfge rellortchily feels the mi.fille.slass shop.hieing tinetises. *huh kite intreAse,1 nteke.tly in resent yeas.require the ohnituts judicial peeve fings to impress thetottununin sith the .eritess of this tonJutt. Most such

are rittull ion* patistpants qui...Nora theWit.14111 the t oort's -my:eking*** policy which preventspte.petitin iiver.in of any ,nth taw.

$7

an advocate. One of the judges, however, did notfeel that screening of uncontested prOSecutions was,in thc least, defective, on the basis of those comingto trial before her.) Some of the participants sug-gested two solutions to the problem created by theadvocate's late arrival on the scene under theproem system: either to have an advocate involvedearlier in the process ( before cases are referredby the probation case supervisor to individual pro-bation officers ), or to give some formal legal train-ing ( short of degree training to the probationofficos involved in intake. Most preferred the lat-ter, however, on the ground that a lawyer's "nar-row.' approach might hinder the free diversion oflegally sufficient cases at intake.

h. PriAttifot Prstomd. Two criticism weredirected to the lack of specialization within theprobation staff. One source criticized the presentsystem whereby intake cases are channeled to thesame probation officer who has had prior contactwith the youth's court career. Another source cri-ticized the fact that the same probation officermakes the intake decision and later recommendsdisposition. Both felt that intake staff should bedistinct from regular probation staff.

c. Aid). A major problem has been that of delayin satisfying requests made by probation to advo-cates for screening decisions. Delays of up to "acouple of months" have occurred between the timethe casework supervisor refers a "denial" case toan advocate for his approval of the OW for pros-ecution. The delay was apparently attributable tothe fact that the file had to be sent by mail to anadvocate at his law dike, and he might "sit on"it for long periods of time. One month ago, a"solution" was found for the Hartford cases byarranging with one advocate to wine to the Courtonce every week, and to screen all the cases col-lected for his review. He now makes over 9O'of all screening decisions for the Court. The prob.km has not been solved, however, for prosecutionswithin the Third District which take place in rurallocationsthe judges "ride circuit" every week. Inthis respect (and several other respects in whichthe Hartford system of prosecution works well )

there is more dissatisfaction with the handling ofrural cases.

d. Expt eke'. Ads it arcs t and defense counsel)paid $50 for pretrial preparation of each WK.. andanother $50 for the adjudication hearing. It is feltthat by having one advocate come in to screen anumber of files one day a week, it may be :cute topay for his services on some less costly basis than$50 per case screened.

e. hitiJtigatig,Ns. Several sources indicated thatthe investigative staff available to advocates areinsufficient. The police arc felt to do inadequateinvestigation on many of the (041 referred to theCourt. Fiedler investigation is therefore Oftenrequired More a petition can be tiled. Adequate,trained investigative personnel are not available,with the result that many delays are caused.

2. Drafting of petitions. Several sourcescriticized the quality of petitions. particularly inuncontested taseS. which are not subiect to reviewby an advocate. In contested cases, the advocatewho Scrams the case normally "suggests" languagefor the petition to the probation officer, and thatlanguage is generally adopted. The solution pro-posed was for advocates to draft or to review thepetitions in both contested and uncontested cases.

3. Detention hearings. As previouslyremarked, advocates appear only at detention hear-ings if the youth denies commission of the delin-quent act, in which case an advocate's presence isdeemed necessary to argue on probable cause.Otherwise, the probation officer argues the case fordetention. Probation officers are rept,rtedly embar-rassed in this role, because the detentkin stage isoften their initial contact with a youth whose per-sonal trust they seek to gain, and arguing fordetention they feel prejudices their position fromthe start. (They reportedly do not feel any qualmsabout advocating restrictive measures at the dis-position stage, by which time they have establisheda good relationship with the youth, and can franklydisclose their views. The need exists, therefore, toexpand the Aso( ate's role to all detention hearings.

4. Disposition hearings. Most persons inter-

88

viewed felt that there was no need for an advocateAt disposition. While a defense counsel rarely°MOWS a probation officer's recommendations fordisposition, he Joys reportedly play some role ininformal consultation with the probation officerprior to the actual hearing. One defense lawyerreported opposing the probation culicces plan ontwo o.casions, and "winning" both times. Thesources unanimously stated their admiration for theprobation stall, who reportedly work hard for gooddispositions short of commitment to the state train-ing school. They view the disposition decision asa "social" issue, in whirl' the prosecutor can makeno spec ial contribution. Two lawyers, when pressedby Center staff, conceded that in "serious cases"

where commitment was possible) an advocate'sparticipation might be useful.

Although some participants in the process we-ognized a need to expand the role of prosecutionin some of the areas dos aled above, mast pre-ferred the present method of appointing prosecu-tors to a system of full-time prosecutors. For themost part. those interviewed did not feel that thelaw fees and the pan-tim arrangements adverselyaffected the quality or continuity of service. Fur-thermore, they felt that advocates were independenteven though they must rely upon probation forappointments. Finally, they argued that the Courtmay not have sufficient business to warrant full-time prosecution; even if it did, someone hired ona full-time basis would undoubtedly be young andinexperienced as opposed to the experienced law-yers now serving as advocates. Hartford is indeedfortunate to have the kind of assistance is nowreceiving from private practitioners. It is anlikely,however, given the need to expand the role ofprosecution in such areas as petition drafting andreview, court intake, diversion, pretrial hearings,investigation, etc., that exclusive reliance uponpart-time advocates will be feasible or desirable inthe future. This is particularly true if efforts a:

made, consistent with this report, to utilize ptcs-ecution in far more creative ways than have beenattempted thus far in Hanford or most othe.jurisdictions.

CHAPTER VII

PROSECUTION GUIDELINES FOR BOSTON JUVENILE COURT

A. GENERAL PRINCIPLES FOR I 3

JUVENILE PROSECUTIONI I. The immtutt is an a./:-...111 Of the State's interest

in juvenile court. The 'States interest- is complexand mutt Rallied. and may car with the type of pro-(Aram:: and the nature of the particular taw. Fore-most. it ( protection of the tom:11unit%.&ion the danger of harmtul conduct by the restraint

tchabileatti in of iti% mile offenders; and t bcontent. shard hr all viten& polite. system ptt-tt Milt:I. as part is p.ert.h . w ith prt ane Pt of the bestinterest, of juveniles.

I .1 To the extent that the States interest in communityprotection may conflict w ith its Interest as A/tintpatrik in promoting the %ellbeing of a particularchild. the prosecutor will be required to balance theinterests based upon the nature and facts of thepanic tilar case For rx.unple. to the MOIL that*MW% lutt to be balanced in gi% en cast~. thebalance might be struck in faster of community pro -tection a hen the juvenile presents a substantialthreat to community sccurtt but of promoting thewell being of a child for most other types of%that it Ms.

IA. In his role as .4111..th. the prosetutor has responsi-hairy to erasure adequate preparation and presenta-fit to of the state, wit, from the stage of politeinvest tgatiiin through prckecdings.He is also cotrullittva generally to the advancementof legitimate law enforcement and child welfaregoals by the poetic ipation of his (Ate, together withother agencies sot h as the public defender's office.in dratrinz court rules AM legislation. in appellatelitigation, and in other activities which shape devel-opment of the law.

1 i rommutnent to the rehabilitative philosophy of thejutenile court bars the use of certain penal ()Hee-oces to achieve Community security and protection.Retribution. for example, is not a proper goal ofjuvenile court prowcinion.

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I A.

I.".

Since unnecessary exposure to juvenile court pm..%tidings And to formal labeling 4cid treatment inthe jusende court process is often cunterproduc.the for many juveniles. the prt1WititOS duty toprmote both the community's longerm securityand the best interest of particular juveniles requireshim to encourage and stimulate early diversion ofcases from the totitt and to strive for imposing theleast restrictire alternative available in icaling witha itnenile throughout the juvenile justice process.It also requires that a prosecutor proceed only onlegally sufficient complaints or petitions even thougha juvenile may require treatment or other types ofassistance litespnsibility to this area is tActtisedby slit h mans as issuing enforcement guidelines tothe police. screen.ng out deficient, insufficient, ortrivial complaints, and actively encouraging andparticipating in efforts to refer juveniles to otheragencies or reads agreement on other acceptabledispositions in tete% where court handling is notthe best means for either protecting the communityor helping the ;oven&

The prosecutor shares the responsibility with otherjuvenile (lam personnel to ensure that rehabilitativemeasures undertaken as alternatives to court han-dling or pursuant to t owl-ordered disposititm areactually tarried out, and that facilities and servicesfor treatment and detention meet proper standardsof quality.

The prosecutor has a duty to .trek iintiee in juvenilecoun by insisting upon fair and lawful procedures.This entails the responsibility to ensure, for exam -ple. that baseless prosecutions are not brought, thatall juveniles receive fair and equal treatment, thatliberal discovery of the State's case is available todefense counsel that exculpatory evidence is madeavailable to the defense, and that excessively harshdispositions are not sought. It also entails the respon-sibility to oversee police investigative behavior toensure its compliance with the law.

1

B. SPECIFIC GUIDELINES

In accordance with the preceding general prin.ciples and objectives. the following standards areproposed with regard to the establishment andoperation of an office for prosecution in the BostonJuvenile Court.2.1. An Office for Prosetution should be established in

the lioston juvenile Court. under the direction of aChief juvenile Court Prt Necuti tr.

Commentary. These standards envision thecreation of a specialized office of prosecutionlocated in the Boston Juvenile Court. Location ofthe office in the Juvenile Court should serve tofacilitate efficiency and promote close liaison withthe various other segments of court operation:judges, the court clerk, probation, and the courtclinic. The Chief Juvenile Court Prosecutor andhis prosecution staff will be trained attorneys andwill constitute an independent office for juvenileprosecution which will be distinct in personnel andorganization from any other state or local prosecu-tion apparatus. His duties, which are elaborated inthe standards which follow, include some taskspresently performed by personnel without adequatelegal trainingsuch as police and probation of&cersand some tasks which are not c urrently anyparticular agent's responsibility. Generally, heshould represent the Commonwealth at all stagesof proceedings in the Boston Juvenile Court andassume overall responsibility for the investigation,preparation and presentation of all cases involvingjuveniles. Creation of a special prosecution officeshould serve to centralize and coordinate the vari-ous tasks appropriate to proper representation ofthe state's interest under the direction of personsadequately trained to carry them out.

There is some merit in the suggestion that thestate advocate in juvenile courts should be givensome title other than "prosecutor," in order to dis-tinguish his special functions from those of aim-final court prose% utors. Professor Fox, for example,proposes the title "Community Advocate." In the

pri.setutots au the Jts%etult: a urt A Statutory Pro-J Erg +; i

90

Hartford Juvenile Court, the simple term "Advo-cate" is used. We have used the term "prosecutor"because we believe its negative connotations .ireoffset by advantages of clarity and directness. Itshould be possible to distinguish the functions ofthis office from that of the District Attorney with-out resorting to more neutral labels which maymislead the public.

I. Police enforce merit and isruestigatkpn2.2. In addition to the prosecutor's responsibility to give

general guidance and assistance with regard to policeoperations involving juveniles (see Standardittfut he should instruct and advise police Akerson matters pertaining to particular cases. Hisapproval should be required for all applications tothe court for issuance of arrest and search warrants.

Commentary. In Standard -11, ii,fra. we sug-gest that the juvenile court prosecutor should haveresponsibilities for general liaison and assistanceto the police regarding enforcement methodsand policies in juvenile cases. That aspect of theprosecutor's interaction with the police concernsrelationships with the upper levels of police admin-istration. This standard, in contrast, is addressedto the prosecutor's responsibility for relating on acase by case basis with individual police officersregarding cases they have brought before the court.At this stage of the proceedings, the prosecutorbears responsibility vis-a-vis the police on severaldifferent levels. If the rase is unsuitable for pros-ecution because, for example, there is insufficientevidence to support a complaint, or because it rep-resents a class of cases which under applicableenforcement guidelines should be handled withoutcourt processing, the prosecutor is obliged toexplain these deficiencies to the officers concerned.He has a similar educational role in cases whichreveal the use of illegal enforcement measures bythe police or other state agents. Where more evi-dence is required for the prosecution of any case,the prosecutor should so instruct the police andprovide general supervision over the subsequentinvestigation. All of these functions are appropriateto implement the prosecutor's role as advocate

t

(General Principles, supra. para. 3) and his gen-eral duty to seek itNit e for juveniles (GeneralPrinciples, Jon/. para. ).

This standard further establishes a requirementof prior prosecutorial approval of police requestsfor arrest warrants and search %counts. Thisrequirement is in keeping with the prosecutor'soverall responsibility for proceedings which reachthe court stage. and for policies governing &ten-thin ( Standard 2.3, infra). Arrest and search war-rants authorize very serious degrees of state inter-vention. If requests are screened by a legally trainedprosecutor prior to the time they are presented tothe court, the court can have increased confidencein the justification for their issuance.' Also, thepr9secutor should encourage the police to makefull use of the power to obtain arrest and searchwarrants in all appropriate cases.

2. Pretrial detention23 The jtnettile mat Prosecuto- should represent the

Commonwealth at detention and probable causeI earings. He %Nda also coordinate the execution

rattles ge tertotng pretrial detention of children.in carrying out this responsibility, he may encouragethe primulgatiiin id written guidelines to governdetenthn decisions made by INIike, detention per-sonnel. and court staff.

Commentary. The prosecutor has an impor-tant role to play at detention .hearings, %here heshould represent the Commonwealth in addressingthe factual and legal issues which may arise. Injurisdictions which hold "probable cause" hearingsin juvenile cases, either in conjunction with deten-tion hearings or separately, the prosecutor has asimilar role to play.

This standard also places substantial respon-sibility on the prosecutor for pretrial detentionpolicy. Juvenile detention policies must reflect adelicate balance between the need to avoid unnec-essary pretrial restraint of juvenilesin recogni-tion both of the harms suffered by childrenconfined in shelter detention facilities, and of theduty to honor every child's right to liberty and the

The pt#A4 nod- ts emun this %Livening resplinsibility in theDPtf It t . )11i

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presumption of innocence which he enjoysandthe need to protect society andfor some childrenagainst the harms which potentially flow fromunsuper% ised freedom. The person best situated toexpress the community's view of this balancegenerally, in regard to the proper criteria forderenticin, and specifically, in arguing the applica-tion of promulgated criteria to particular cases--is the Juvenile Court Prosecutor. This standardtherefore assigns him responsibility to participateiii the formulation of overall policy, and to overseeits execution by the police, probation. and parolealters, and detention staff. While policy shouldand mus: Ne informed by the perspectives of theseother personnel, the prosecutor is well situatedto provide over t.1 coordination.

In jurisdictions like Massachusetts which applythe bail system to juveniles, the prosecutor shouldencourage the use of release on personal recog-nizance whenever feasible. The prosecutor shouldalso be familiar personally with available shelterand detention facilities, and should encourageefforts by the Department of Youth Services tomake available appropriate new facilities whereneeded. Familiarity with available facilities willenable the prosecutor to fulfill his role adequatelyas advocate at detention hearings. As stated in theGeneral Principles (iviret. para. 6), the prosecutorshares responsibility to ensure that these facilitiesMIA proper standards of quality. Where they donor, he is in a good position to support attemptsby judges and others with special responsibility forinstitutions of juvenile justice to bring inadequaciesto public attention. The same holds true, of course,with regard to treatment facilities employed at thedisposition stage of proceedings.

3. Court intake2. I. The prosecutor, in conjunction kith probation staff.

has an important role at court intake to ensure thatcases inappropriate for judicial handling, and onlyWO OM, are dismissed or diverted. Prior to thefiling of any complaint with the court the prosecu-tor should review the case to assess its merits. Healso has the primary responsibility to initiate pro-ceedings to transfer CAWS for criminal trial.

Commen; ry. The Boston Juvenile Courtcurrently la% ks any developed system of intakescreening ana diversion. This standard proposesthat an into kt: structure be establVied and that theNosecutor pity an important role in its operation.

The prosecutor has functicms at intake in rela-tion to three objectives: 1) screening of prosecu-tions for legal sufficiency, to ensur that anycoercive treatment, whether administered on aformal or "informal" basis, rests on an adequatelegal basis; 2) prosecuting or diverting legallysufficient cases according to "public polity" con-siderations regarding the nature of the conductalleged: and 3) prosecuting or diverting legallysufficient cases on the basis of the juvenile's incli-vidual needs or propensities.

The first function, screening of complaints' forlegal suflic ienc y, entails review of the allegations,and of the evidence adduced in support thereof,to determine two things: whether sufficient com-petent evidence exists to support a primd fadecase that waywardness or delinquency, as definedby statute, exists; and whether the complaint asdrafted is both legally sufficient and sufficientlydetailed to give fair notice to the juvenile of thematters c barged. These functions implement theprinciples that "a prose( utor proceed only onlegally sufficient complaints . . . even though ajuvenile may require treatment or other type ofassistance" (General Principles, sNpra. para. 5 ),and that "the prosecutor has a . responsibilityto ensure . . . that baseless prosecutions are notbrought. ( General Principles sord. para. 7). Itwould be clearly improper to permit the institution of court proceedings on the basis of a com-plaint which was known to be insufficient towarrant court jurisdiction. Bet AUSC the issue of legalsufficiency k a technical one, the screening respon-sibility should be exercised or reviewed by alawyer- pn>sec utor, rather than by a layman.

To enable the prosecutor to perform these func-N- :30er NEtsAt intsenti I,t to the

3.11th: AV( ,Ittut %.01, um- Inc..% eklintitit'MV. known inilk'.? piris.h,r1..11,.i. tip. re tat, bn 1.1v refer tit tht intornunsWO. .ttan t.) thr e 0:rt t..r tik Om: tt.m.11.iint as theretitttst tir tilisi.tttat

tions within the statutory framework of existingMassachusetts law, it might be required that nocomplaint should be accepted by the court clerk(as a basis for the issuance of process under Mass.Gen. Laws Ann. ch. 119 5.1) unless the prosecu-tor has countersigned the pleading. This wouldnot eliminate the court clerk's present functions,but would erect another screen between com-plainants and the issuance of summons, in theperson of the prosecutor. Nor would this requirethat complaints he drafted by the prosecutor..although that might be desirable in some cases;complaints might still be drafted by the clerk'soffice, but simply reviewed and counter-signed bythe prosecutor.

With regard to the second and third objective,.of the prosecutor's involvement at intaketcdivert or prosecute legally sufficient cases ongrounds of public policy or individual attributesit is essential that some mechanism exist wherebythe prosecutor can challenge a refusal by intakepersonnel to recommend the institution of pro-ceedings. It is most important that intake staffhave the discretion to screen out or divert caseseven when sufficient evidential basis exists to sup-port the filing of a complaint. As the GeneralPrinciples state (lord. para. 5), "unnecessaryexposure to juvenile court proceedings and to for-mal labeling and treatment in the juvenile courtprocess is often counter-productive for many juve-niles." In many cases technically warranting pros-ecution, neither the juvenile's nor the community'sinterest would be served by such action. Instead,informal resolution of the precipitating dispute,perhaps accompanied by diversion to other com-munity services agencies, would be indicated. How-ever, in some instances the police or other com-plainant will feel aggrieved by an exercise of intakestaff discretion to dismiss a legally sufficient cas".In those cases, the disagreement should be referredto the prosecutor for his judgment whether, allthings considered, the community's interest wouldbe furthered by the institution of proceedings. Atthat juncture, the prosecutor could either be givenunreviewable authority to sustain or overrule the

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intake recommendation, or power only to "appeal"the intake unit's refusal to the judge for final deci-sion on whether a oft till a int should be filed. Theformer solution has the disadvantage of permittingthe pro seeutor to overrule the "expert judgment"of the intake unit's soda! work staff as to theoverall desirability of prosecution; the latter solu-tion arguably requires the court to exercise a"prosecutorial discretion" incompatible with a pos.ture of judicial neutrality. Permitting the judgeto make the final tklision as to the desirability ofprosecution may also lead him re pre-judge caseswhich might later be presented to him for adjudica-tion. In courts like the Boston Juvenile Court,% both have more than one judge, in such cases thejudge can. of °um. disqualify himself.

Similar onsiderations arise with regard to aclosely related question: Should the prosecutorhave an option to oppose an intake staff recom-mendation to file a complaint, although the evi-dence is legally sufficient to support. an adjudia-tion of waywardness or delinquent y? A strongargument can be made that the prosecutor shouldnot be bound by intake staff recommendations tofile a complaint.' even when sufficient legal groundsfor prosecution exist. The prosecutor is in a uniqueposition to weigh other factors w Inch properlybear upon the decision to prosecute in ( juvenile )court: whether the community interest in prosecu-don justifies the expenditure of scarce enforcementand prosecutorial manpower, and of courtresources; and whether in his professional judg-ment it is the sort of case likely to result in adjudica-tion, given ludic ial attitudes, and credibility of wit-

nesses The prosecutor's vantage point in the systemarguably gives him a unique expertise which shouldnot !.e subservient to the judgment of other intakestaff.

A distinct but related question covered by thisstandard, whether a juvenile should be divertedfrom the juvenile court to the criminal justice sys-

I Or A pArtsiolAr kind t Lumplaust rather than Another.e whether .lehntptents. sh..uld bt Allet e.f. ur n.I tor tits.n.1 pal t t..tt.

tem through transfer proceedings, also turns uponthe prosecutor's special competence to weigh thecompeting considerations and decide whether torequest such a transfer. In his capacity as advocatefor community interests, lw should bear primaryresponsibility for this decision, on which consulta-tion with complainants and intake staff will beinfluential but not binding. Of course the transferissue is finally for the court to decide, but allocatiik;to the prosecutor the responsibility for initiatingthose proceedings frees the judge to maintain anappropriately neutral posture prior to the hearingon that issue.

Two other issues relating to the structure andoperation of intake screening and diversionmachinery will require .resolution. These are:should the intake unit have authority to postponethe decision whether to institute formal proceed-ings for a substantial period of time, while itadministers "informal services" to the allegedoffender; or should prior judicial approval berequired for the provision of extended servicesbefore adjudication? And, what criteria shouldguide preadjudication screening and diversion ofcases? With regara to the first question, the systemin some jurisdictions whereby court intake staffmay delay filing a petition for a long period whilethe youth "voluntarily" participates in informalprobation has been criticized. The defect in suchpractices relates to the inherent coerciveness ofsuch restrictions, imposed at the uncontrolled dis-cretion of intake staff, whose power derives fromtheir ability to file a petition at any time if theyouth fails to "cooperate." To control this practice,some jurisdictions have adopted the intake systemproposed by the Children's Bureau LegishdiveGuide for Family and Juvenile Courts (1969).§13 and 33. This system permits intake staff toattempt an informal settlement of the case for avery short period of time! If a petition has notbeen filed by the end of that period, it can never

5 Set' Masc. ben. Laws Ann. th. 119 *

's The Ltehhorte Gorde is tart entirely dear whether thatPetiiki is ten days t*1 4 t et or thirty 'lays t# 1 4 t d ) ); tenJays was probably intended.

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be tiled. "Informal services" may be offered for anextended period as a means of diverting the casewithout an adjudication, but the judge, and notsolely intake staff. must approve and superintendsuch arrangements in the form of consent decrees:The 1.,j=latt: t C;;,;..6 restricts the length of timein which the formal prosecution may be revived

if the youth violates his agreement under the con-sent decree. And the prosecutor lacks discretion topress for an adjudication so long as the decree isnot violated.

The consult decree disk e. combined with strictlimitations on the intake unit's power to postponetiling a complaint pending the outcome of informaldiversion efforts, would seem most in keeping withpast and current arrangements at the Boston Juve-nile Court. Extended preadjudication diversionefforts are commonly made by the judge, in theform of "continuance without a finding," ratherthan by other staff free of judicial supervision. Inother juvenile courts, however, the bulk of diver-sion activities may take place prior to the tilingof a petition. In such courts, the prosecutor shouldexercise responsibility to ensure that abuses do notoccur. He might do so by issuing intake policyguidelines, as discussed below.

The second and final issue for discussion involvesthe source and content of the criteria which shouldbe employed to govern intake screening and diver-sion decisions, both prior to and following thetiling of a complaint. It is clearly desirable thatthe criteria governing intake be articulated in someform sue h as internal policy guidelines, to ensurerational, uniform and reviewable decisionmaking.We have pointrd out that various models exist fordeciding the prosecutor's precise role in these deci-sions, beyond his root function Of screening com-plaints for legal sufficiency. Regardless of his rolein the intake process, however, he should play asubstantial, if not leading, role in the formulation

1. III .4.111t fit u ?him flit' pt. twt Ube.% agreement to a teltt..tot .t rt tit, 1,ite t.. its e. in tither.. thepr...e 10.4 Ks, the right tit nuke tit.t. tit a tic% rrt.. buttiu tit l.ge tux; vs fruit its, ithst-ttt..11,

set Attics I. An Kir K %O S Jitili'.jt RI1IIM4Pr, set.Nlit 19"11. At It 3.5.

and enforcement of intake criteria. This conclusionfollows from his overall responsibility for lawenforcement and prosecution policies, and for"actively encouraging and participating in effortsto refer juveniles to other agencies to reach agree-ment on other acceptable dispositions in caseswhere court handling is not the best means forprotecting either the community or the juvenile."f General Principles, :Om para. 5 ).

4. Diversion of cases before adjudication2.5. In suitable instances the prosecutor should encourage

the use of consent decrees to avoid adjudication incases in which a complaint has been filed.

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Corn mentary. Standard 2.4, opra. gives theprosecutor a responsibility to encourage the diver-sion of suitable case from juvenile court in theperiod before a complaint is filed. This diversionresponsibility is extended, by this standard, up tothe time of adjudication. Since judicial approval isnecessary for any decision to suspend or withdrawprosecution once a complaint has been filed, the"consent decree" mechanism has been adopted inseveral jurisdictions. See Commentary to Standad2..t, saprd. In the Boston Juvenile Court, consentdecrees as such are not used, but the device 0/."continuance without a finding" serves the samebasic purpose of suspending the proceedings fora fixed period while the youth submits to judiciallysponsored supervision or treatment. The purpose ofthis is to try to terminate the proceedings withoutresorting to a formal adjudication of delinquencyor waywardness. Such diversion is to be encouragedby the prosecutor, in order to safeguard the juvenilefrom unnecessary proceedings and stigma, to gainhis cooperation in the program of correctionaltreatment, and to conserve judicial time. This stan-dard therefore imposes on him the duty to encourage the use of post-complaint, pre-adjudicationdiversion through constructive negotiations withprobation and defense counsel.

S. Preparation of cases for trial26. The prosecutor lass primary responsibility for pre-

paring cases for trial. including the selection. inter-

4

viewing and summoning of witnesses, and the con-duct of further unestigation when necessary.

COinsteattar Paragraph 3 of the GeneralPrinciples, stspra. states: "In his role as advocate,the prosecutor has responsibility to ensure adequatepreparation and presentation of the State's case,from the stage of police investigation through post-disposition proceedings." This standard implementsthat principle by stating the prosecutor's duty withregard to preparation for trial: to select, interviewand summons witnesses, and to see that furtherinvestigation is carried out when necessary. Thelatter task might be aiomplished by use of thepolice, or by investigathe staff attached directly tothe prosecutor's office. See Standard 3.2, infra. onpersonnel. In general, the prosecutor's investiga-tion and preparation fir trial should meet thestandards established by the American Bar Asso-ciation, Standards Re' hig to the ProsecutionAuction. § 3.1-3.3.

6. Pretrial motions and discovery2.'. The prosecutor has the responsibility to represent

the State At hearings on pretrial motions. He shouldalso be available to confer with defense counselbefore trial for the purpose of expediting resolutionof the case. This includes the duty to grant liberaldiscov-gy to the defense.

Commentary. The prosecutor's responsibilityto appear as advocate of the State's interest injuvcaile court proceedings requires that he take anactive part in making and responding to pretrialmotions. In addition to hearings on bind-over anddetention, discussed 'Ora. these may includemotions to suppress evidence, grant discovery, ordera medical examination, or dismiss a complaint ondouble jeopardy grounds.

The prosecutor's interaction before trial withdefense counsel should not be limited, however,to adversary motion prartice. The prosecutor has avery important role to play in cooperative rela-tionships with defense at this stage. He should takethe initiative to elicit defense views on such issuesas whether the evidence warrants filing of a com-plaint, whether there are desirable possibilities for

95

diversion without adjudication, and whether certainissues can be disposed of prior to trial by stipulationor otherwise. In the interest of fair and expeditioushandling of the case, he should grant the defenseliberal discovery of information and materialsin his possession. within such limits as havebeen established by the American bar Association,Stand ads Relating to Discovery Before Trial(Approved Draft, 1970). This includes notifyingthe defense of any exculpatory evidence, and ofthe substance of any written reports resulting fromsocial investigations under Mass. Clef). Laws Ann.ch. 119, § 57, and from medical, psychological, orother examinations. See General Principles, supra.para. 7. On the other hand, the prosecutor's legaltraining enables him to judge when defenserequests for discovery should not be grantedinorder to protect the identity of informants, forexample. Liberal discovery can expedite no onlythe conduct of adjudicatory hearings, but also thecontingent planning of dispositional recommen-dations.

7. Pi 'vegetation of State's case at trial2.8. Professional prosecutors should represent the State

at trial whenever possible. Where manpower limita-tions necessitate the use of non-professionals, suchas police or law students, they should act under closeprofessional supervision, and only in restricted cate-gories of cases.

Commentary. This standard proposes thatprofessional prosecutors should represent the stateat trials whenever possible. This contrasts with thecurrent system of prosecution in Boston JuvenileCourt, which relies almost exclusively upon non-lawyer police prosecutors. The proposal is basedon the belief that introduction of professionalprosecution in all cases will raise the general levelof representation presently afforded both the stateand the defense.

Should manpower limitations necessitate thecontinued use of police prosecutors in some cases,or limited prosecution by law students or othernon-professionals, then those persons should oper-ate under the close supervision of the Juvenile

Court Prosecutor. Furthermore, certain cases--which present major legal or evidentiary problemsshould not be handled by non-professionals. Wealso recommend that an investigating police officernot be eligible to prosecute "his own" case, becauseof the awkward role conflicts inherent in thatsituation.

8. Dispositiont2 t) If there k a finding, of delinquency or waywardness,

the prosecutor should ensure that a fair dispositionhearing is held. and that appropriate recommenda-tions for disposition are presented to the court. Inappropriate cases, he should make a recommends-tion as to disposition based upon his own knowledgeof the t'a'e. The objective of the recommendationshould be to secure not the most severe dispositionin eat 11 t.ase. but one entailing the minimum remit:-non on the chili calculated to prevent further delin-quent.). or waywardness. To this end. the prosecutorshould consult with probation staff and, if requestedby counsel for the child, should disclose the disposi-tion recommendation he proposes to make to thecourt and the reasons therefor,

COM wentary. This standard asserts the desir-ability of continuing the lawyerprosecutor'sinvolvement in the case past the adjudication,and into the disposition stage. His functions atdisposition are of two kinds. First, particularlywhere the underlying facts supporting alternativedispositions are contested, he has the responsibilityto ensure that the hearing to establish those factsis fair, and that only reliable evidence is intro-duced. Second, he has responsibility to ensure thatan adequate dispositions' recommendation is placedbefore the court. He may do this in several ways.By advance consultation with both probation andthe defense, he may stimulate them to conduct thenecessary investigation and planning to proposerecommendations--either separately or in concertwhich seem acceptable. In addition to servingas a catalyst to others, in some cases the prosecutormay feel constrained to make his own dispositionrecommendation to the court, in opposition to thatproposed by probation and/or defense. His duty todo so stems from his role as advocate for the com-

munity, and a conception of the probation staff asexperts, not advocates. As an advocate, the pros-ecutor rather than the probation officer is theappropriate person to communicate with thedefense and if necessary, to contest dispositions'recommendations which may be made by thedefense. His presence not only frees probation fromthe burden of advocacy, but may free the defenselawyer from any inhibitions he may have in oppos-ing the recommendations of lay probation officersfor fear of arousing the court's "protective" reac-tions or endangering cooperative relationships withthis probation staff.

In those courts where probation plays an asser-tive role at disposition, the prosecutor may find itunnecessary in some cases to appear at the disposi-tion hearing, especially in minor and uncontestedcases. But the prosecutor should never abdicatehis overall responsibility to ensure that the courtis presented with concrete and *temptable disposi-tion recommendations and that open communica-tion and disclosure exists between probation andthe defense prior to disposition.

9. Appeals and collateral attack2.10. The Juvenile Court Prosecutor should represent

the State at appeals and in collateral proceedings.whether in the Juvenile Court or other court.

96

Co as pieestary. The system of prosecution inthe Juvenile Court envisioned by these .standardsis characterized by a unique approach to represen-ration. This approach would be fostered by specialtraining and experience. See Standard 3.3, infra.In order to safeguard the integrity of this system,it is important that the Juvenile Court prosecutor,rather than a District Attorney or other outsidelawyer, represent the State in appeals and collateralproceedings such as habeas corps: petitions. Suifi-dent manpower should be allocated to the JuvenileCourt Prosecutor to meet these demands as theymay arise.

10. Proceeditsgs at the correction stage2.11. The Juvenile Court Prosecutor should represent the

State in proceedings to modify or terminate dis-

Nitional orders and treatment measures. 111(11146gptieeduko tiI tcok tbatti in and parole

Consmenta ry. juvvni le Court proc vetting!: donot always terminate w ith the findings at disposi-tion. Further procetxlings may of t ur sue has ri..voctiOn of probation or parole, prik tVdMg% to modify,extend or terminate dtspositional measures, andproceedings to seal or expunge records. At suchproceedings the State should be represented by thejuvenile Court Prosecutor, whose role is to inter-pret and advocate the community's interest in theoutcome of the proceedings. It is far preferable forthe prosecutor to argue the case for revocation ofprobation, than for example. for the probation offi-cer invitIved to do so. Not only might the probationofficer be a witness in the proceedings, but per-forming the :Kivu, at y function May interfere withhis other roles vis-a-vis the probationer. Profes-sional prosecution is also desirable in view of theincreasing extent to which Constitutional dueprocess requirements are becoming applicable tothese postaspositional stages of proceedings. Layadvocates may not be equipped to deal with themanifold technical issues of procedure, evidenceand substantive "rights to treatment" which mayarise.

11. Personnel and training:I jtactule Court ProStt LIMN, ...mid be members of

the Bar. They should have demonstrated legal abilityin the field of juvenile or criminal justice. demon-strated interest in the problems of juvenile delin-quency and a commitment to non-punitive responsesto those problems.

Commentary. The fundamental premise ofthese standards is that the prosecutor in juvenilecourt ought to he a lawyer. Therefore, this standardrequires that he be a member of the MassachusettsBar. While demonstrated proficiency in criminalor juvenile justice is also made a necessary condi-tion of eligibility, it is nor a sufficient condition:a sympathetic interest in the problems of juveniledelinquency, and a demonstrated personal commit-ment to a non-punitive approach to these problems,are also essential criteria for selection. The prosecu.

97

tor will therefore be a lawyer familiar with the"social" philosophy of the juvenile Court, andcommitted to its constructive goals. He must havethe ability to communicate well with both legaland non-legal personnel in and outside of theG iurt.

Given the broad scope of the prosecutor's respon-sibility envisioned by these standards, the Chiefjuvenile Court Prosecutor must be a full-time,salaried official as should the assistant prosecutorsunder his supervision. Under special circumstances,prosecutors might be assigned in individual casesfrom among interested and qualified private prac-titioners, like the system used by the HartfordJuvenile Court. If assigned prosecutors are used,they should be required to participate in the train-ing programs recommended by &anditicl 3.3, h2Pw.and they should work under the general super-vision of the Chief Juvenile Court Prosecutor.

There are many options for the method ofappointing the Chief juvenile Court Prosecutor.He might be appointed by the District Attorney,by the Corporation Counsel, by the Governoracting upon the recommendation of a special boardor council. For any CAW, the Chief judge of thejuvenile Court should participate fully in theappointment process. The precise method of ap-pointment to be chosen is a matter which requiresfurther study. During an interim year of experi-memation, however, we anticipate that the juve-nile court prosecution office would be a specialproject funded within the office of either the Suf-folk County District Attorney or the City of BostonCorporation Counsel.;.2. In addition to lawyers, the Office of Prosecution

should include adequate numbers of trained socialworkers, criminal investipitors, and Para-profes-sionals in law and social work.

Commesstary. This standard outlines themajor personnel needs of the Juvenile Court Officefor Prosecution. The Chief Prosecutor shouldsupervise a staff of lawyer-prosecutors adequate for

the legal demands facing the office. In addition, hemust have ready access to the services of social

workers to condutt social investigations at variousstages: intake, bind Act., detention, and dispositionprincipally come to mind. These social workersneed not necessarily be attached to his office; insome courts they may be organized in a separateprobation unit, and k lVrtlilLite some %%ay with

the prosecutor's office. Skilled investigators withexperience in criminal investigation are an essen-tial resource for the prosetutor. Frequently. casesreferred to juvenile court have been incompletelyinvestkcated by the polite or other referral source,and the Jet ision to prose:Lute may be conditionedupon the conduct of further investigation. Investi-gators attached to the court ought to be availableto do this under the prosecutor's direct supervision.

Para-professional personnel in the fields of lawand social %cork can also perform useful roles forthe office. In a university community like Boston,students are particularly available for this function.The use of law students, for example, to performlegal tasks at intake screening, investigations, atvarious sorts of simple pre- and post-trial hearings,and at the adjudication hearing under adequatesupervision is an attractive possibility, and one ofproven advantage in other turrent legal contexts.The educational value of such experience to thestudents is substantial. For the community, studentsprovide an inexpenSive but competent and ener-getic resource. The long-term value of exposingstudents to the theory and reality of the juvenilejustice system would be inestimable. Finally, thestudent connection can and should be used as thebasis for c ondut ting continuous research and evalu-ation of the prosecution function in the court, aswell as other aspects of the juvenile justice system.

A special training program should be devised andadministered to juvenile ('omit Ps Acclaim andtaller officer personnel. Tr3ining, should include both

orientation. and continuing education involv-ing liaison with related agencies in the field ofjuvenile justice.

Commentary. Even assuming the exercise ofspecial t are in staffing decisions. there will be needfor a training program designed to orient juvenileprosecution lawyers and other personnel, and to

98

maintain a continuously high standard of knowl-edge and understanding in their work. Orientationtraining might be achieved by an intensive programof lectures, readings, discussions, and institutionalvisits, designed to familiarize staff with the courtand its prtkesses, the background and philosophyof juvenile justice institutions, and the interplay ofcourt and other community agencies such as theschools, welfare administration, police, and healthcare systems. Training should also introduce staffto the treatment services locally available outsidethe court and to skills required for selecting thefacilities appropriate for particular children andfamilies. A manual of prosecution policies andprocedures should be prepared, for continuing usein operations and in orientation of new personnel.

Part of the training program should also consistof periodic seminars or conferences at which pro-secution staff would meet with persons from otherorganizations involved in the juvenile justice sys-tem; police and school officials, representatives ofprivate and public treatment agencies such as theDepartment of Youth Services, public defenders,etc., to exchange views on problems of commonconcern. Such forums would contribute to main-taining an open perspective in the prosecutionoffice, and to a continual refocusing upon the non-punitive goals of the court.

Including the Chief Juvenile Court Prosecutor, theOffice of Pnist..cution should be staffed by four full-time prosecutors. It is further contemplated that lawstudents will be usvd to provide supporting servicesand that investigative and social service liaisonassistance will be required.

Commentary. The question of manpowerstandards for prosecutors', offices is (me for whichfew guidelines are available. An examination ofthe literature and consultations with the NationalAssociation of District Attorneys reveals no reliableguidelines for determining proper prosecutorialstaffing needs. In the area of juvenile prosecutionwhich, until recently, was largely undeveloped, theproblems in this regard are even more pronounced.The widely varying scope of responsibility whichprosecutors have in different jurisdictions and the

organizational and prtk (Mural variations "longjuvenile tourts in the United States proviue fewreliable models.

In the Boston juvenile Court, with WI previousexperience in the use of professional prostutors,the ditfitulty in making atturate I npower pro.jet tiros is further compounded. Furthermore, thesestandards kontvnipt.itt a tar more expansive: rolefor prosecution than is currently played by policeprosecutors. These broader responsibilities. whichwould include pout ipation in screening and divert-ing cases and in the preparati.in of consent deco ars,could haw an effect on the number of cases whichrequi.:c a full hearing on the facts. On the otherhand, tie creation of methanisms for increasingpre- and pest- complaint diversion opportunitiesmay well increase the number of court referrals.

However, while diffit ult, a reasonable assessmerit of prosutorial staff needs is not impossible.In the opinion of the Court's Chief judge, five orsix attorney-prosecutors would be required to pro-vide comprehensive. high quality community repre-sentation. I:. 54pport of this estimate, it is notedthat the four a six public defenders who now pro.vide defense representation in the court do nothave sufficient time to prepare their cases ade-quately. OT own observations indicate that twoprosecutors would be essential merely to providebare physical coverage for the court's two court-rooms which are frequently in simultaneous ses-sion. It is not unrealistic to assume that the prose.tutor's out-of-court responsibilities would consumean amount of time at least equivalent to that com-mitted to court appearances. Accordingly, it is anti-cipated that a minimum of four prosecutors wouldhe required to provide adequate services in thecourt and that a larger number may well be rims-sary. In the King County Juvenile Court (Seattle.Washington f. which has twice as many annualcourt referrals as the Boston juvetsile Court butonly half the number of cases which are judiciallydisposed of, four prosecutors are used. It is believedthat with the effective utilization of law studentpersonnel to provide back-up assistance (e.g.. inter-vieing witnesses, conducting legal research, pre-

paring and arguing motions, etc.), a full-time staffof four prosecutors would probably be sufficientin the Boston Juvenile Court. The assignment ofprosecutors from the private bar should he con-sidered as a temporary measure to relieve seriousimitud pressures in the event that they arise.

The juvenile prosecutor may also require thesupporting services of an investigator and an indi-vidual to assume social service liaison responsibili-ties. Depending upon emerging needs, these posi-tions may be filled by assigning personnel fromother agencies (e.g.. police or probation officers).

As stated earlier, staffing requirements for ajuvenile prosecutor's office are dependent upon awide assortment of variables. For this reason, it isnot suggested that stalling recommendations forthe Boston Juvenile Court would necessarily applyto other courts. However, in determining prosecu-torial needs, consideration should be given to thefollowing factors: the scope of prosecutorialinvolvement ( will he play a role in intake deci-sions, diversion and disposition ); the extent towhich present court resources will retain respon-sibility for prosecutorial functions ( for example,drafting petitions); the court's caseload ( includingnon-judicial adjustments, judicial proceedings andcontested cases ); the amount and scope of defenserepresentation; the number of judges who hearjuvenile cases at the same time; and the availabilityof supplemental personnel resources (e.g.. lawstudents).

12. Relationship with other agencies4.1 The Office for Juvenile Prosecution should consult

regularly with the Office of Legal Counsel to thePolice Department. for the purpose of.

keeping the police informed of current legaland court developments;

th ;encouraging and assisting in the preparationand enforcement of Police Department guidelinesfur juvenile cases. including criteria for police inter-vention, custody and detention practices, and dis.cretion to dispose of cases without referral to court.

Commentary. In Standard 2.2, lord. weaddressed ourselves to the prosecutor's role in relat-ing to individual police officers about the conduct

99

4$

of partitular cases. This standard envisions abroader role for the Mit e for Prosecution in rela-tion to the Polite Dpartmentthat of generalliaison. This ought to be a tnulti.tateted role. Inone asps:. t, the prose( utor serves as advisor andassistant to the polite, tommultionng tourt attitudes and current legal developments, with theaim of improt ins; polite effettiveness in dealingwith the court. In a titatiely related aspect, he helpsto shape polite enforcement policy, so that it com-ports with the overall goals of justice, int ladingresort to the court only when net essary and properunder express, fair criteria. Lastly, in his liaison rolehe helps the tourt to avert or meet criticism byinterpreting Its Hit ie and at tions to the police.lk thereby helps in insulating the judges from thepressure to respond to such criticism. As a lawyerand prosecutor, he is likely to gain a more sym-pathetic hearing from the polite tht, for example,might a head of juvenile court probation set-vit es. For all these reasons, we believe the pros -

cutor's liaison role with the police is of principalimportant e.

2. The °nate of juvenile Prahea: talon should consultal) the departments of probation and

011 t-t% to fai. ilium mutual toordinationwith regard to the functioning of probation andimam ion wt.% ii.es It should also maintain ton-

t imams liaison with public 0.nd private communityagettle% which provide preventive and immanentwas ita:s to jut vias.

Cow stesstary. The Office for Prosecution inthe juvenile Court plays a key role in the enforce-ment tit the lass involving youth. In order to func-tion effectively and efficiently, the Chief juvenileProsecutor must maintain regular liaison withagencies other than the Polkv Department whichaffect youth. Coordination with probation andyouth services administrators is of crucial import.ante, since these agencies are directly engaged inthe treatment and control of prosecuted youths.Liaison with other public and private agencies,including the *Aux)! system, child welfare orga-nizations, and private treatment agencies is alsoimportant To them, the Chief Juvenile Prose-cutor can serve as spokesman for the court inexplaining prosecution and treatment policies, andin stimulating cooperative responses from the com-munity. For example, the prosecutor might explaincourt intake policy to school administrators, toencourage them not to use the court as a "dumpingground" for truants who might otherwise he dealtwith more effectively. In such liaison efforts, theprosecutor may in appropriate instances be able toinsulate the Juvenile Court judge from communitypressures or misunderstanding.

100

.t

APPENDIX A

SURVEY CITIES

Questionnaires were sent to juvenile court judges serving in the 100 largest cities in the United States, aslisted below. The thirty-two cities which bear an asterisk ( ) are those from which no completed question-naires were returned.

1 New York ( it. New YorkChicago, IllinoisLos Angeles. CaliforniaPhiladelphia, PennsylvaniaDetroit, Michigan

;1is34

6 Htrustun. Texas^* Baltimore. Maryland 13

8 Dallas. Texas .1)9 Washington. 1). C. i2

In Cleveland, Ohio .14

11 Indianapolis. Indiana 14

12 Milwaukee, WisomsinI i San Francisco. California 16

San Diego, California iR

I S San Antonio. Texas 48

1 Huston. Massachusetts 4. 0)

I.' Memphis. Tennessee "50IS St. Louis, Missouri S 1

19 New Orleans. Louisiana S2

24) Phoenix, Arizona 5421 Columbus, Ohio *5i22 Sunk. Vs'ash ing,t4m 552 Jat ksonville, Florida S621 Pittsburgh, Pennsylvania25 Denver, Colorado SM2 Kansas City, Missouri S92' Atlanta, ( its irgiA 0IS Buffalo. New York 6129 C incinnati, Ohio 6240 NashvilleDas idson 4

County, Tenn. 441 San Jose, CAI amnia fis42 Minneapolis. Minnesota "664; Ft. Worth. Texas

Toledo, OhioNewark. New JerseyMinima, OregonOklahoma City. OklahomaLouisville, KentuckyOakland, CaliforniaLong Heach, CaliforniaOmaha, NebraskaMiami, FloridaTulsa, OklahomaHonolulu, HawaiiCl Past, TexasSt. Paul, MinnesotaNorfolk. VirginiaBirmingham. Alabama

ok hotel. New YorkTampa, FloridaU'ititita, KansasAkron OhioTucson. ArirtJersey City, New JerseySacramento, CaliforniaAustin, TexasRichmon.f, VirginiaAlbuquerque. New MexicoDayton, OhioCharlotte, North CarolinaSt. Petersburg, FloridaCorpus Christi, TexasY. :Am New YorkDes Moines, Iowa

Grand Rapids. MichiganSyracuse. New YorkFlint, Mk higan

101

a(,8

*lit)

TO"1

)

.71

"74i

"76

e-.9

HO*NI

8284481

KS

*86

8859

91

949195

96ior

99100

Mobile, AlabamaShreveport. LouisianaWarren. MichiganProvidence, Rhode IslandFt. %/Carty, IttaILM.1

Worcester. MassachusettsSalt lake City, UtahGary. IndianaKnoxville, TennesseeVirginia !Each, Virginia

Madison, WisconsinSpokane, WashingtonKansas City. KansasAnaheim, CaliforniaFresno. CaliforniaBoon Rouge. LouisianaSpringfield. MassachusettsHartford, Canne+ctivatSanta Ana. CaliforniaRridgeptsrt, ConnecticutColumbus, GeorgiaTact mu. WashingtonJackson, MississippiLincoln, NebraskaLubbixlc, TexasRockford. IllinoisPaterson. New JerseyGreensboro. North CarolinaYoungstown. OhioRiverside, CaliforniaFt Lauderdale, FloridaEvansville, IndianaNewport News, Virginia

APPENDIX B

TABLE 1.-Who Can Authorise Issuance of ArrestWarrants? (68 Cities)

Officer No. Percent

TABLE 4.-Who Can Authorize the(68 Cities)

Ming of a Petition?

Number PercentOfficer

Clerk (5 9) Clerk 6 (8.8)Non-attorney prosecutor 0 (0.%)) Non - attorney prosecutor 0 (0.0)Attorney-prosecutor 0 (o u) Attorney-prosecutor 8 (11.8)Probation officer 1 (1.5) Probation officer 16 (23.5)Judge 50 (73.5) itrige 9 (13.2)Probation officer. Judge 3 (4.4) Probation officer/judge 7 (10.3)Prosecutor/probation officer 0 (0.0) Prosecutor /probation officer 3 (4.4)Prosecutor /judge 2 (2.9) Pros tutor/sidge 3 (4.4)Judge/prosecutoriprobation officer 2 (2.9) Judge/prosecutor/probation officer 7 (10.3)Clerk/prosecutor/probation officer 0 (0.0) Clerk/prosecutor/probation officer 0 (0.0)No one 0 (0.0) No one 0 (0.0)No response 6 (8.8) No response 9 (13 2)Total 68 (100.0) Total 68 (100.00)

TABLE 2.-Who Reviews the initial(68 Cities)

Detention Decision?

Number Percent

-.-.TABLE 50-Who Prepares the Petition? (68

Number

Cities)

Officer Percent. .

OfficerClerk 19 (27.9)

Clerk 2 (2.9) Non-attorney prosecutor 0 (0.0)Non attorney prosecutor (0.0) Attorney-prosecutor 15 (22.1)Attorney-prosecutor (0.0) Probation officer 23 (33.8)Probation officer 16 (23.5) Judge 0 (0.0)Judge 39 (57.4) Probation officer/judge 0 (0.0)Probation oft icer;judge 7 (10.3) Prosecutor/probation officer 4 (5.9)Prosecutor pmbation officer 1 (1.5) Prosecutor/judge (0.0)Prosecutoiiiudge 0 (0.0) Judge/prosecutor/probation officer 0 (0.0)Judge/prosecutor 'probation officer 0 (0.0) Clerk/prosecutor/probation officer (0.0)Clerk: prosecutor. probation officer 0 (0.0) No one 0 (0.0)No one 0 (0.0) No response 7 (10.3)No response 3 (4.4) Total 68 (100.0)Total 68 (100.0)

TABLE 3.-Who Represents the StateHearing? (68 Cities)

.

Officer

at a Detention

. .

Number Percent. _

TABLE 6.-Who Reviews the Petition for Legal Sufficiency?(68 Cities)

Officer Number Percent

Clerk 7 (10.3)Clerk 0 (0.0)Non attorney prosecutor 2 (2.9) Non attorney prosecutor 1. (1.5)Attorney prosecutor 26 (38.2) Attorney-prosecutor 25 (368)Priitiation officer 11 (16.2) Probation officer 8 (11.8)Judge 1 (1.5) Judge 11 (16.2)probation off icerijudge 0 (0.0) Probation officer/judge 0 (0.0)Prosecutor/probation officer 2 (2.9) Prosecutor/probation officer 3 (4.4)Prosecutor 'judgeJudge: prosecutor. probation officer

00

(0.0)(0.0)

Prosecutor/judgeJudge/prosecutor/probation officer

(0.0)(0.0)

Cierk..proser.utor probation officer 0 (0.0) Clerk/prosecutor/probation officer 0 (0.0)No one 23 (33.8) No one 7 (10.3)No response 3 (4.4) No response 6 (8.8)Total 68 (100.0) Total 68 (100.0)

102

TABLE 7.-Who Must Sign the Petition? (88 Cities)

Officer Number percent

Clerk 4 (5.9)Non attorney prosecutor 0 (0.0)Attorney.prosecutor 6 (8.8)Probation off it.ir 18 (26.5)Judge 1 (1.5)Probation of 1 (1.5)P.osecutovprobation officer 5 (7.4)Prosecutor judge 0 (0.0)Judgeprosecutor/probation officer 0 (0.0)Clerk; prosecutor probation officer 0 (0.0)No one 0 (0.0)No response 33 (48.5)Total (100.01

.1.1Mala.. 11 ... 411...11.1=11W

TABLE 10.-Who Conduct* Preheating Negohations torthe Mato? (68 Cities)

Officer Number Percent

Clerk 1 (1.5)Non-attorney prosecutor 1 (1.5)Attorneyprosecutor 31 (45.6)Probation officer 10 (14.7)Judge 2 (2.9)Probation officer/judge 0 (0.0)Prosecutor/probation officer 8 (11.8)Prosecutor /judge 1 (1.5)Judgeiptosecutor/probation officer 0 (0.0)Clerk/prosecutor/probation officer O (0.0)No one 2 (2.9)No response 12 (17.6)Total 68 (100.0)

TABLE 8. -Who Represents the State at Pretrial Motions? TABLE 11.-Who May Request That a Manila be Pound(68 Cities) Over? (WI Cities)

Officer Number Percent

Clerk (0.0)Non.attorney prosecutor 2 (2.9)Attorneyprosecutor 52 (76.5)Probation officer 3 (4.4)Judge 0 (0.0)Probation officer/judge 0 (0.0)Prosecutor/probation officer 2 (2.9)Prosecutor/judge 0 (0.0)Judge/prosecutor/probation officer 0 (0.0)Clerk /prosecutor /probation officer 0 (0.0)No one 4 (5.9)No response 5 (7.4)Total 68 (100.0)

TAME 9.-Who Represents the Stat. at Probable CauseHearings? (68 Cities)

Officer Number Percent

Clerk 0 (0.0)Non attorney prosecutor 3 (4.4)Attorney.prosecutor !0 (73.5)Probation officer 4 (5.9)Judge 3 (0.0)Probation officer/judge 0 (0.0)Prosecutor/probation officer 0 (0.0)Prosecutor/judge 0 (0.0)Judge/prosecutor/probation officer 0 (0.0)Clerk/prosecutor/probation officer 0 (0.0)No one 3 (4.4)No response 8 (11.8)Total 68 (100.0)

103

Officer Number Percent

ClerkNon.attorney 1.u3secutor 2 (2.9)Attorney-prosecutor 32 (47.1)Probation officer 3 (4.4)Judge 5 (7.4)Probation officer/judge 0 (0.0)Prosecutor/probation officer 10 (14.7)Prosecutor/judge 5 (7.4)Judge/prosecutor/probation officer 1 (1.5)Clerk/prosecutor/probation officer 0 (0.0)No one 0 (0.0)No response 10 (14.7)Total se (100.0)

TABLE 12.-Who Represents the State at a BindovarHeilltntit (68 Mee)

Officer Number Percent

(0.5)ClerkNonattorney prosecutor 2 (2.9)Attorneyprosecutor 52 (76.5)Probation officer 1 (1.5)Judge 2 (2.9)Probation officer/judge 2 (2.9)Prosecutor/probation officer (2.9)Prosecutor /judg (0.0)Jedge/Pinsermfor/probation officer 0 (0.0)Clerk/prosecutor/probation officer 0 (0.0)No one 1 (1.5)No responseTotal 68 (100.0)

TABLE 13.-Who May Request Physical or MentalExamination of the Juvenile? (68 Cities)

Officer Number Percent. -Clerk 0 (0.0)Nonattorney prosecutor 1 (1.5)Attorney prosecutor 2 (2.9)Probation officer 9 (13.2)Judge 8 (11.8)Probation officer, judge 8 (11.8)Prosecutor/probation officer 17 (25.0)Prosecutor/judge 3 (4A)fudge /prosecutor /probation officer 13 (19.1)Clerk/prosecutor/probation officer (0.0)No one o (0.0)No response 7 (10.3)Total 68 (100.0)

TABLE 14.-Who Represents Petitioner in ConsentDecrees? (68 Cities)

Officer Number Percent

Clerk (0.0)Nonattorney prosecutor 1 (1.5)Attorney-prosecutor 29 (42.6)Probation officer 2 (2.9)Judge 0 (0.0)Probation officer/judge 0 (0.0)Prosecutor/probation officer 5 (7.4)Prosecutor/judge tomJudge/prosecutor/probation officer 1 (1.5)Clerk/prosecutor/probation officer (0.0)No one 5 (7.4)No response 25 (36.8)Total 68 (100.0)

TABLE 15. -Who Has Authority to Amend a FiledPetition? (68 Cities)

Officer Number Percent

ClerkNonttorney prosecutorAttorneyprosecutorProbation officerJudgeProbation officer/judgeProsecutor/probation officerProsecutor/judgeJudge /prosecutor /probation officer

Clerk /prosecutor/probation officerNo oneNo response

Total

O (0.0)O (0.0)

15 (22.1)4 (5.9)

31 (45.6)1 (1.5)5 (7.4)3 (4.4)5 (7.4)O (0.0)o (0.0)4 (5.9)

68 (100.0)

TABLE 16.-Who Can More for Dismissal of a FliedPetition? (GB Cities)

. .

Officer.

Number Percent

Clerk 0 (0.0)Nonattomey prosecutor 1 (1.5)Attorneyprosecutor 30 (44.1)Probation officer 3 (4.4)Judge 1 (1.5)Probation offker/judge o (0.0)Prosecutor/probation officer 21 (30.9)Prosecutor/judge 3 (4.4)Judge/prosecutor/probation officer 2 (2.9)Clerk/prosecutor/probation officer 0 (0.0)No one 0 (0.0)No respbnse 7 (10.3)Total 68 (100.0)

TABLE 17.---Who Represents Petitioner at AdjudicationHearing" (68 Cities)

Officer Number Percent

Clerk . 0 (0.0)Nonattorney prosecutor 1 (1.5)Attorney prosecutor 49 (72.1)Probation officer 1 (1.5)Judge 0 (0.0)Probation officer/judge 0 (0.0)Prosecutor/probation officer 4 (5.9)Prosecutor/judge 0 (0.0)Judge/prosecutor/probation officer (0.0)Clerk/prosecutor/probation officer 0 (0.0)No one 5 (7.4)No response 8 (11.8)Total 68 (100.0)

TABLE 18.-Who Replants Petitioner at Disposition?(68 Cities)

Officer Number Percent

ClerkNonattorney prosecutorAttorneyprosecutorProbation officerJudgeProbation officer/judgeProsecutor/probation officerProsecutor/judgeJudge/prosecutor/probation officerCierk/prosecutor/probstion officerNo one -

No responseTotal

o (0.0)1 (1.5)

33 (48.5)6 (8.8)

(0.0)(0.0)

9 (13.2)(0.0)(0.0)

0 (0.0)13 (19.1)6 (8.8)

68 (100.0)

104

TABLE 19.--Who Conducts Examination of Witnesses?(68 Cities)

Officer Number Percent

Clerk 0 (0.0)Non attorney prosecutor 2 (2.9)Attorney-prosecutor 46 (67.6)Probation officer 2 (2.9)Judge 2 (2.9)Probation officer/judge (0.0)Prosecutor/probation officer 4 (5.9)Prosecutor/judge 9 (13.2)Judge /prosecutor /probation officer 0 (0.0)Clerk/prosecutor/probation officer (0.0)No one 1 (1.5)No response 2 (2.9)Total 68 (100.0)

TABLE 20.-Who Recommends Disposition to the Judge?(6$ Cities)

Officer Number PercentClerk 0 (0.0)Nonattorney prosecutor 1 (1.5)Attorney-prosecutor 6 (8.8)Probation officer 41 (60.3)Judge 0 (0.0)Probation officer/judge 0 (0.0)Prosecutor/probation officer 17 (25.0)Prosecutor/judge Q (0.0)Judge/prosecutor/probation officer 0 (0.0)Clerk /prosecutor /probation officer 0 (0.0)No one 1 (1.5)No response 2 (2.9)Total 68 (100.0)

TABLE 21.-Who Represents the Petitioner on Appeal?(68 Cities)

Officer Number Percent

Clerk 0 (0.0)Non attorney prosecutor 0 (0.0)Attorney prosecutor 47 (69.1)Probation officer 1 (1.5)Judge 0 (0 0)Probation officer/judge 0 (0.0)Prosecutor / probation officer 2 (2.9)Prosecutor/judge 0 (0.0)Judge/prosecutor/probation officer 0 (0.0)Clerk/prosecutor/probation officer 0 (0.0)No one 4 (5.9)flu response 14 (20.6)Total 68 (100.0)

TABLE 22. Who Represents the State in Habeas CorpusProceedings? (68 Cities)

Officer Number Percent

Clerk 0 (0.0)Non.attorney prosecutor 0 (0.0)Attorney-prosecutor 49 (72.1)Probation officer 2 (2.9)Judge 0 (0.0)Probation officer/judge (0.0)Prosecutor/probation officer 0 (0.0)Prosecutor /judge 0 (0.0)Judge/prosecutor/probation officer 0 (0.0)Cterk/prosecutor /probation officer 0 (0.0)No one 4 (5.9)No response 13 (19.1)Total 68 (100 a)

TABLE 23.-Who Presents the Case on an AllegedProbation Violation? (68 Cities)

Officer Number Percent

Clerk 0 (0.0)Nonattorney prosecutor 0 (0.0)Attorney-prosecutor 21 (30.9)Probation officer 24 (35.3)Judge 0 (0.0)Probation officer/judge 0 (0.0)Prosecutor/probation officer 19 (27.9)Prosecutor /judge 0 (0.0)Judge/prosecutor/probation officer 0 (0.0)Clerk/prosecutor/probation officer 0 (0.0)No one 0 (0.0)No response 4 (5.9)Total 68 (100.0)

111. MMIMe, Me

105

TABLE 1.-Charges in the Boston Juvenile

Charges Num

APPENDIX C

court (1971). .

ber Percent

TABLE 1.-Charges In the Boston Juvenile Court (1971)-Continued

Assault and batteryAssault and battery

(dangerous weapon)Assault with intent to killCarnal abuseMurderRapeArmed robberyUnarmed robberyAssault with intent to robExtortionAccessory before the factManslaughterLarceny in a buildingArsonBreaking and enteringDestruction of propertyLarceny and attempted larcenyLarceny from a personLarceny from a motor vehicleOperating a motor vehicle without

authorityReceiving stolen propertyTrespassingUtteringBeating animalsPossession of counterfeit billsLewdnessDisturbing a public assemblyAffrayDisorderly conduct/disturbing peaceDrunkennessFalse alarmGlue sniffingPossession of drugsPossession of marijuanaPresence of drugsOperating motor vehicle without

a licenseOperating motor vehicle to endangerOther motor vehicle violationsPossession of burglars' toolsProstitutionRunawayStubborn childThreatsTruantWayward childPossession of a BB gunDisorderly personDischarging firearmPossession of a hypodermic

needle/syringeViolation of park rulesBreaking glassHitchingAttempt to rescue a prisoner

83

8041

4

578515

1

31

209

18919

49816710

1441383471.

1

354

103434

423

34

4414315411

247604

3522

191

20361

4

(3.6)

(3.5)(0.2)

(0.2)(0.2)(2.5)(3:7)(0.6)

(0.1)

(0.9)(0.4)(8.2)(0.8)

(21.5)(7.2)(0.4)

(6.2)(6.0)(1.5)(0.3)

a

(0.1)(0.2)(0.2)(0.4)(1.5)(0.1)(0.2)(1.8)(0.1)(1.5)

(1.9)(0.6)(1.3)(2.3)(0.5)

(10.7)(2.6)(0.2)(1.5)

a

a

(0.8)

(0.9)(0.1)(0.3)

a

(0.2)

Charges Number Percent

(0.6)(0.5)

(0.2)(0.3)

Possession of firearmPossession of a dangerous weaponInterfering with the METASolicitingSate of drugsUnknown

1311

1

256

Total 2314 (99.6)

TABLE 2.-Charges in the Boston Juvenile Court-Representation by Private Retained Council (1971)

ChargesNum-bet

Percent.age of all

CasesInvolvingRetainedCounsel

Percent-age ofTotalCourt

Caseload

Assault and batteryAssault and battery

(dangerous weapon) .

Assault with intent to killMurderRapeArmed robberyUnarmed robberyAccessory before the factManslaughterBreaking and enteringDestruction of propertyLarcenyLarceny from a personOperating motor vehicle

without authorityReceiving stolen propertyTrespassingDisturbing a public

assemblyDisorderly conductDrunkennessFalse alarmPossession of drugsPossession of marijuanaPresence of drugsOperating motor vehicle

without licenseProstitutionRunawayStubborn childTruantDisorderly personBreaking glassPossession of firearmSale of drugs

Total

10

51

11

321

1

64

3113

792

1

22231

1

21

41

161

1

1

127

(7.8)

(3.9)(0.8)(0.8)(0.8)(2.3)(1.5)(0.8)(0.8)(4.7)(3.1)

(24.4)(10.2)

(5.5)(7.1)(1.5)

(0.8)(1.5)(1.5)(1.5)(2.3)(0.8)(0.8)

(1.5)(0.8)(3.1)(0.8)(0.8)(4.7)(0.8)(0.8)(0.8)

(99.3)

(3.6)

(3.5)(0.2)(0.2)(0.2)(2.5)(3.7)(0.1)

a

(8.2)(0.8)

(21.5)(7.2)

(6.2)(6.0)(1.5)

(0.2)(0.4)(1.5)(0.1)(1.8)(0.1)(1.5)

(1.9)(0.5)

(10.7)(2.6)(1.5)(0.8)(0.3)(0.6)(0.2)

- TABLE 3.-Ball Amounts (1971)

Bail Amount Number Percent

$50 or less 77 02.5)$51-100 138 (22.4)$101-250 4 (0.7)$251-S00 145 (23.6)$501 -850 . 2 (0.3)$851-1.000 106 (17.2)$1.000-2.500 58 (9.4)$2.501.5.000 63 (10.2)$5.001-10.000 9 (1.5)$10.000 or more 8 (1.3)No data 5 (0.8)

Totalas...00.1

615 (99.9)

TABLE 4.-- Pasting of Bail by Arnow* (1971) (N = 610)

AmountPosted

Number Percent

Not Posted

Number

No Data Total

Number Percent Percent Number Percent

$50 or less~ 29 (37.7) 35 (45.5) 13 (16.8) 77 (100.0)$51-250 87 (61.3) 34 (23.9) 21 (14.0) 142 (100.0)$251 500 75 (51.7) 41 (28.3) 29 (20.0) 145 (100.0)$501 -1,000 70 (64.8) 27 (25.0) 11 (10.2) 108 (100.0)$1.001 5,000 96 (79.3) 6 (5.0) 19 (15.7) 121 (100.0)$5.000 or more 10 (58.8) 1. (5.9) 6 (35.3) 17 (100.0)Total 367 (60.2) 144 (23.6) 99 (16.2) 610 (100.0)

Bait was set in 615 cases This table include* 610 Cases(99 2".) in which data on amount were available.

TABLE 5.-Offenses for Which Bail Was Set (1971) TABLE B.-Offenses for Which Ball Was Set (1971)-ContinuedPercent

Percent of Total PercentOffense Number of Bad Court Percent of Total

Offenses Caseload Offense Number of Ban Court

(2.5) Offenses CaseloadArmed robbery 22 (3.6)Unarmed robbery 36 (5.9) (3.7) .Operating a motor vehicleBreaking and entering 78 (12.7) (8.2) to endanger 1 (0.2) (0.6)Larceny 73 (11.9) (21.5) Other motor vehicleLarceny from a person 45 (7.3) (7.2) violations 1 (0.2) (1.3)Operating a motor vehicle Possession of burglars'

without authority 42 (6.8) (62) tools 12 (2.0) (2.3)Receiving stolen property 4 (5.5) (6.0) Unnatural act . 1 (0.2) (0.1)Runaway 130 (21.1) (10.7) Presence of drugs 7 (1.1) (1.5)Stubborn child 18 (2.9) (2.6) Destruction of property 1 (0.2) (0.8)Larceny frorri a building 4 (0.7) (0.9) Disturbing a publicDrunkenness 7 (1.1) (1.5) assembly 1 (0.2) (0.2)Wayward child 2 (0.3) less than

(0.1)Operating a motor vehicle

without a license 4 (0.7) (1.9)TrespassingAssault and batteryAssault and battery

(dangerous weapon)

3

9

21

(0.5)

(1.5)

(3.4)

(1.5)

(3.6)

(3.5)

Possession of firearmPossession of a dangerous

weaponInterfering with the MBTA

5

41

(0.8)

(0.7)(02)

(0.6)

(0.5)less than

(0.1)Assault with intent to rob 3 (0.5) (0.6) Possession of drugs 10 (1.6) (1.8)Arson 4 (0.7) (0.4) Prostitution 3 (0.5) (0.5)Uttering 4 (0.7) (0.3) Disorderly person 2 (0.3) (0.8)Possession of marijuana 3 (0.5) (0.1) Accessary before the fact 1 (0.2) (0.1)

107

TABLE 5.-Offenses for Which Bail Was Set (1971)-Continued

PercentPercent of Total

Offense Number of Ban CourtOffenses Caseload

Carnal abuse 1 (0 less than(O.')

Possession of hypodermicneedle; syringe 2 (0.3) (0.9)

Soliciting 1 (0.2) less than(0.1)

Sale of drugs 4 (0.7) (0.2)Rape 2 (0.3) (0.2)ManstaUghter 1 (0.21 less than

(0.1)Larceny from a motor

vehicle 4 (0.7) (0.4)Assault with intent to kill 2 (0.3) (0.2)Unknown 6 (0.9) (0.3)

Total 615 (100.5)

TABLE 5.-findings in Cases Where Ball Was Set (1971)

Disposition

Bail

Num.ber

Set

Percent

Total

Num-ber

Sample

Per-cent

Delinquent 318 (51.7). _

854 (42.0)Not delinquent 41 (6.7) 132 (6.5)Dismissed without

a finding 85 (13.8) 379 (18.7)Filed without a finding 39 (6.3) 94 (4.6)Bound over 40 (6.5) 76 (3.7)Continued without

a finding 25 (4.1) 384 (19.0)Restitution; court costs 0 (0.0) 7 (0.3)Habitual truant 0 (0.0) 14 (0.7)No data 67 (10.9) 92 (4.5)

Total 615 (100.0) 2032 (100.0)

TABLE 7.-Dispositions in Cases Where Bail Was Set(1971)

.0.or.. ow. ostloo

Bail Set..Total Sample

Disposition Num. Per. Num- Fer-ber cent ber cent

. .

Probation 73 (23.0) 302 (34.8)Suspended Sentence

Probation 84 (26.4) 266 (30.6)Filed 80 (25.2) 155 (17.9)Committed to D.Y.S. 68 (21.4) 95 (10.9)Other 11 (3.4) 32 (3.7)No data 2 (0.6) 18 (2.1)

Total 318 (100.0) 868 (100.0)

108

TABLE 8.-Offenses Represented by Private RetainedAttorney (1971)

Offense Number Percent

Percentof TotalCourt

Caseload

Assault and battery 10 (7.8) (3.6)Assault and battery

(dangerous weapon) 5 (3.9) (3.5)Assault with intent to kill 1 (0.8) (0.2)Murder 1 (0.8) (02)Rape 1 (0.8) (0.2)Armed robbery 3 (2.3) (2.5)Unarmed robbery 2 (1.5) (3.7)Accessory before the fact 1 (0.8) (0.1)Manslaughter 1 (0.8) less than

(0.1)Breaking and entering 6 (4.1) (8.2)Destruction of property 4 (3.1) (0.8)Larceny 31 (24.4) (21.5)Larcency from a person 13 (10.2) (7.2)Operating a motor vehicle

without authority 7 (5.5) (6.2)Receiving stolen property 9 (7.1) (6.0)Trespaising 2 (1.5) (1.5)Disturbing a public

assembly 1 (0.8) (0.2)Disorderly conduct 2 (1.5) (0.4)Drunkenness 2 (1.5) (1.5)False alarm 2 (1.5) (0.1)Possession of drugs 3 (2.3) (1.8)Possession of marijuana 1 (0.8) (0.1)Presence of drugs 1 (0.8) (1.5)Operating a motor vehicle

without a license 2 (1.5) (1.9)Prostitution 1 (0.8) (0.5)Runaway 4 (3.1) (10.7)Stubborn child 1 (0.8) (2.6)truant 1 (0.8) (1.5)Disorderly person 6 (4.7) (0.8)Breaking glass 1 (0.8) (0.3)Possession of firearm 1 (0.8) (0.6)Sale of drugs 1 (0.8) (0.2)

Total 127 (99.3) .111

TABLE 9.--Appeals in the Boston Juvenile Court byOffense (1971)

Offense

Appeals Taken(Not Withdrawn)

Appeals Taken(Withdrawn)

TotalAppeals

Number Percent Number Percent Number Percent

Assault and battery 3 (4.3) 3 (16.7) 6 (6.9)Assault arid battery

(dangerous weapon) 5 (7.2) 4 (22.2) 9 (103)Armed robbery 3 (4.3) 0 (0.0) 3 (3.4)Unarmed robbery 9 (13.0) 3 (16.7) 12 (13.8)Assault with intent to rob 1 (1.4) 0 (0.0) 1 (1.1)Breaking and entering 5 (7.2) 0 (0.0) 5 (5.7)Larcedy 8 (11.6) 3 (16.7) 11 (12.6)Larceny from a person 11 (15.9) 1 (5.6) 12 (13.8)Larceny from a motor vehicle 1 (1.4) 0 (0.0) 1 (1.1)Operating a motor vehicle

without authority 2 (2.9) 0 (0.0) 2 (2.3)Receiving stolen property 6 (an 1 (5.6) 7 (8.0)Trespassing 2 (2.9) 1 (5.6) 3 (3.4)Disorderly conduct 1 (1.4) (0.0) 1 (1.1)Possession of drugs 2 (2.9) 0 (0.0) 2 (2.3)Possession of marijuana 1 (1.4) 0 (0.0) 1 (1.1)Operating a motor vehicle

without a license 1 (1.4) 0 (0.0) 1 (1.1)Possession of burglars' tools 1 (1.4) 0 (0.0) 1 (1.1)Runaway 2 (2.9) 1 (5.6) 3 (3.4)Stubborn child 2 (2.9) 0 (0.0) 2 (2.3)Truant 0 (0.0) 1 (5.6) 1 (1.1)Possession of firearm 1 (1.4) (0.0) 1 (1.1)Interfering with the MBTA 1 (1.4) 0 (0.0) 1 (1.1)No data 1 (1.4) 0 (0.0) 1 (1.1)Total 69 (99.3) 18 (100.3) 87 (99.2)

CLOVtfit4A MT PRINtING of FICIS tir74 0 b37-064

10