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March 29, 1972

UNITED STATES of America ex rel. Robert MURRAY, Petitioner,
Chester D. OWENS, Superintendent of Elmira Reception Center, Elmira, New York, et al., Respondents

Gurfein, District Judge.

The opinion of the court was delivered by: GURFEIN

GURFEIN, District Judge.

The petitioner, a fifteen-year-old at the time of his sentence to three years' commitment to Elmira Reception Center, brings this petition for a writ of habeas corpus. He was sentenced by the Bronx County Family Court after a juvenile delinquency proceeding in which a motion for trial by jury was denied. The commitment to Elmira is authorized by the New York Family Court Act § 758(b). That section, in pertinent part, reads as follows:

"(b) Upon an adjudication of delinquency of a person who is fifteen years of age at the time of the commission of any act which, if committed by an adult, would be a class A or a class B felony as defined in the penal law, commitment may be for males to Elmira reception center * * *"

 His conviction and commitment were appealed, inter alia, upon federal constitutional grounds. The New York Court of Appeals dismissed the appeal. *fn1" He then brought an action in this Court under 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201, 2202 seeking a declaratory judgment and injunctive relief. He moved in that action for the convening of a three-judge court and for a temporary restraining order against his transfer from the Spofford Juvenile Center, where he was held, to Elmira Reception Center. I held that in a civil rights action the doctrine of res judicata applied, and that the adverse decision of the New York Court of Appeals could not be relitigated in that type of action. Murray v. Oswald, 333 F. Supp. 490, 493 (S.D.N.Y. 1971); see Lackawanna Police Benevolent Ass'n v. Balen, 446 F.2d 52 (2 Cir. 1971). I suggested, however, that habeas corpus might be a proper remedy, since there is no defense of res judicata in such a proceeding where constitutional issues are involved. Brown v. Allen, 344 U.S. 443, 506-08, 73 S. Ct. 397, 97 L. Ed. 469 (1953). And the petitioner's failure to seek review in the United States Supreme Court would not be fatal on the question of exhaustion of remedies. See Fay v. Noia, 372 U.S. 391, 435-36, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963). *fn2"

 Accordingly, the petitioner now seeks the writ and this Court is obliged to consider the constitutional issues, without benefit or need of a three-judge court. Wilson v. Gooding, 431 F.2d 855 (5 Cir. 1970); United States ex rel. Laino v. Warden, 246 F. Supp. 72, 92 n. 16 (S.D.N.Y. 1965), aff'd, 355 F.2d 208 (2 Cir. 1966). The petitioner urges that he was denied his constitutional rights to due process and equal protection because he was committed to a penal facility without a jury trial. Habeas corpus is available not only to an applicant who claims he is entitled to be free of all restraints, but also to an applicant who protests that his confinement in a certain place vitiates the justification for confinement. See Creek v. Stone, 126 U.S. App. D.C. 329, 379 F.2d 106, 109 (D.C. Cir. 1967).

 The constitutional issue is one of narrow application, but it nevertheless must be decided. The equal protection argument runs as follows. The New York statute, as we have seen, applies only to the class of fifteen-year-olds who commit acts equivalent to serious crimes. A juvenile of fourteen, who has committed the same acts as Murray, may not be sent to the Elmira Reception Center. Youths of sixteen to nineteen (youthful offenders) may be sent to Elmira, but if the prosecution is for a serious crime, they are entitled to a jury trial. People v. Michael A.C., 27 N.Y. 2d 79, 86, 313 N.Y.S. 2d 695, 261 N.E. 2d 620 (1970). In other words, if the petitioner had been fourteen or sixteen, rather than fifteen, he could not legally have been tried and committed as he was. Singling out his small class for curtailment of rights is alleged to be violative of the principle of Baxstrom v. Herold, 383 U.S. 107, 111-12, 86 S. Ct. 760, 15 L. Ed. 2d 620 (1966).

 The due process argument centers on the idea that it is fundamentally unfair to try the offender as a child, but then to imprison him as an adult. It has been noted that in certain juvenile courts "the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children." Kent v. United States, 383 U.S. 541, 556, 86 S. Ct. 1045, 1054, 16 L. Ed. 2d 84 (1966). Here the incongruity between "solicitous care" and "the protections accorded to adults" does not arise from the failure of the care in fact to meet intended standards, but rather from a legislative permission to make this very incongruity a part of the judicial process. *fn3"

 The juvenile court system was first instituted in 1899 in Cook County, Illinois. It was assumed that the informality of the procedure would give the judge insight into available means to deal with the juvenile other than imprisonment with criminals. *fn4" The purpose was not to escape the burdensome necessity of a jury trial in order to give the juvenile less protection than if he were adult. Rather the safeguard of jury trial was traded for a sympathetic review by the judge of the personality of the particular juvenile so that more useful treatment could be ordered. As was said in Pee v. United States, 107 U.S. App. D.C. 47, 274 F.2d 556, 558 (1959), under the juvenile court procedure "such a one" is "not punished as a criminal." *fn5"

 The growth of separate juvenile courts was, accordingly, accompanied in New York and many other states by the development of separate institutions for the juvenile delinquent. "The early reformers were appalled by adult procedures and penalties, and by the fact that children could be given long prison sentences and mixed in jails with hardened criminals." In re Gault, 387 U.S. 1, 15, 87 S. Ct. 1428, 1437, 18 L. Ed. 2d 527 (1967). In New York, two systems of institutions for confinement have evolved, one for juveniles under the Division for Youth and the other for adults and youthful offenders under the Department of Correction. The State Training Schools, which take boys adjudicated to be juvenile delinquents for conduct while under the age of sixteen, are supervised by the Division for Youth; see N.Y. Laws 1971, c. 947, § 3. The Elmira Reception Center, on the other hand, normally takes only males over sixteen. It is a medium security facility which is administered by the Department of Correction, as part of the State prison system, and which functions as a way-station for the purpose of "reception, classification and program-planning." See N.Y. Correction Law, McKinney Consol. Laws c. 43, §§ 2, 70-72; 7 N.Y.C.R.R. §§ 100.75(b) & (c), 150.1(c). Any individual received at the Reception Center (and this would presumably apply to the petitioner) may be sent elsewhere within the State prison system, including a maximum security prison, under the authority of N.Y. Correction Law § 23 permitting administrative transfers.

 It is clear, therefore, that the petitioner has been sentenced to imprisonment for three yars in a facility in which juveniles generally are not placed and where his fellow inmates will not have been sentenced to a three-year term without benefit of trial by jury. Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968); Baldwin v. New York, 399 U.S. 66, 90 S. Ct. 1886, 26 L. Ed. 2d 437 (1969); People v. Michael A.C., supra.

 New York seeks to justify this anomaly by urging that there is a compelling State interest in fostering the juvenile court system and that the alternative disposition provided by Section 758(b) should be viewed as a legitimate and rational part of the total scheme, the coincident absence of a jury trial also being considered as an integral part of that system. It contends that it is reasonable for the Legislature to differentiate, for purposes of disposition, between older, hardened, violent delinquents and other juvenile delinquents. It notes, quite properly, that the older, hardened delinquent might corrupt those younger boys placed in a Training School and substantially reduce or destroy the School's rehabilitative function. As I indicated in my earlier opinion (333 F. Supp. at 493), "a boy of fifteen may be as precocious in the field of criminality as another might be in better fields of endeavor." So it is, indeed, rational for the New York Legislature to make provision for keeping the very bad, older youngster from corrupting the younger children.

 This still leaves open the question of what procedure is to be followed as a preliminary to this prophylactic segregation. Many state courts, in upholding the constitutionality of juvenile court acts, have emphasized not only that the proceedings are non-criminal, but also that the institution to which the delinquent is being committed is not of a penal character. See the state cases collected in White v. Reid, 125 F. Supp. 647, 649-50 (D.D.C. 1954). But Surrogate Midonick, formerly of the New York Family Court, has noted that:

". . . it should be observed that non-juvenile reformatories such as the Elmira Reception Center and Westfield State Farms in New York, while they also are engaged in the quest for rehabilitation and treatment (as any decent penal institution should be), are not capable of dealing with juveniles as juveniles. The very age differential of the inmates makes treatment of a juvenile in a non-juvenile facility quite inadequate and often harmful because of the inappropriate mingling of fifteen-year-olds with inmates up to age 21 and over." M. Midonick, Children, Parents and the Courts 25 (1972). *fn6"

 Formerly, in New York a juvenile could be held for trial as an adult, or removed to Family Court. N.Y. Family Court Act § 715 (1963); N.Y. Code Crim. Proc. §§ 312-c & 312-f (1958). In 1967, instead of continuing this concurrent jurisdiction over juveniles, exclusive jurisdiction of children up to age 16 was conferred upon the Family Court. N.Y. Laws 1967, c. 680, § 87; Family Court Act §§ 712-13. This was a progressive measure, but while creating the exclusive jurisdiction, the provision regarding fifteen-year-olds in § 758(b) of the Family Court Act was permitted to remain with only formal changes. In summary, the situation today in New York is that the precociously criminal fifteen-year-old can ...

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