The opinion of the court was delivered by: CARTER
This habeas corpus class action proceeding is being brought on behalf of a class of all juveniles who are being held or who will be held before these proceedings are concluded in pretrial detention under N.Y. Family Court Act § 739(a)(ii) (McKinney) ("the Act"). Petitioners seek a declaratory judgment that § 739(a)(ii) violates the due process and equal protection clauses of the 14th Amendment. The case was certified as a class action in an unpublished opinion dated April 3, 1978.
In New York persons between the ages of 7 and 16 accused of various acts which would be a crime if committed by an adult are subject to the exclusive jurisdiction of the family court to be prosecuted as juvenile delinquents.
In the exercise of its exclusive jurisdiction over juvenile delinquents, the family court is authorized under the Act to subject an alleged delinquent to pretrial detention prior to a probable cause or fact finding determination if it determines that "there is a serious risk that he may before the return date do an act which if committed by an adult would constitute a crime." § 739(ii). The youth may also be detained because of the substantial probability that he will not appear on the return date 739(a)(i), but this provision is not involved or challenged in this litigation.
A trial on the merits occurred in March, 1980. Edwin Rodriguez, a 16 year old, Juan Santiago, a 15 year old, and Jerome Basnight, a 17 year old, representatives of the class, testified in person. In addition, the files of their proceedings in the family court along with the § 739 case histories of 33 other purported members of the class were introduced in evidence. One of the case histories concerns a Vincent Harris who was not detained and accordingly is not properly a member of the class. The Attorney General contends that Victor Melendez is not properly a member of the class since he was detained pursuant to § 739(a)(i). A reading of the files does not support that contention, however. At the § 739 hearing of Melendez, the judge paraphrased the language of both § 739(a)(i) and § 739(a)(ii) as grounds for Melendez' detention. Accordingly, we will count him as properly included in the class. However, Daryl Larkin, whose case history is included in the class was detained because, in the judge's view, there was "a grave chance" that he would not return to court. (Exhibit 9A). That is the basis for detention under § 739(a) (i). In his brief the attorney general states that Larkin was detained under both § 739(a)(i) and (ii), but I read the transcript differently. Larkin, therefore, will not be considered a member of the class. Thus, the case histories which will be studied are those of 3 named petitioners and 31 other members of the class.
In addition there was testimony concerning the family court process by Steven Hiltz, an attorney for 9 years in the juvenile rights division of the Legal Aid Society, and attorney-in-charge of its Manhattan office from 1976-1979, Hubert Benjamin, supervisor of probation in Bronx Family Court since 1968 and a probation officer for 30 years, and Judge Cesar Quinones, of the Family Court of the City of New York since 1970, who testified concerning § 739 hearings from a judge's perspective.
Michael Bigley, director of detention services of the New York State Division for Youth and Ralph E. Kelly, deputy commissioner of operations of New York City Department of Juvenile Justice, testified concerning secure and non-secure facilities and the functions of the state and city agencies in the housing of juveniles remanded after a § 739 hearing. Professor Leslie Wilkins, professor of criminal justice at the State University of New York at Albany, and Dr. Lynwood David Zinn, Director of Child Psychology at Michael Reese Hospital in Chicago, Illinois, and clinical assistant professor at the University of Chicago, testified as experts for petitioners concerning the harmful effects pretrial detention inflicts on the young and the arbitrariness and untrustworthiness of predictions that a juvenile will commit a crime in the future. Dr. Wilkins questioned whether any reasoned predictive determination to that effect could be made by a family court judge on the basis of an intake interview and stated that the judge's subjective prognosis founded on such data would be roughly only 4% better than pure chance. Finally, Judge Margaret Driscoll of the Supreme Court of Connecticut and with 18 years on the bench testified about national juvenile standards and Connecticut procedures in respect of the pretrial detention of juveniles.
The § 739 Case Histories of the Named Plaintiffs and 31 Other Members of the Class
Edwin Rodriguez was arrested on December 12, 1977, and charged with arson and reckless endangerment (that he with other youths attempted to start a fire in a subway station). Rodriguez was 14 at the time and had no prior arrest record. He had a § 739 hearing on December 13, 1977, before Judge Ferrara. Probation recommended detention. He was detained on the grounds that he was charged with a serious act that occurred at 12:30 A.M., and he was not going to school. A fact finding hearing
was scheduled for December 15, but was adjourned to December 16. At the December 16 hearing, Rodriguez entered a plea to reckless endangerment and was released. He had been detained for a total of 3 days. At the dispositional hearing
on June 23, 1978, Rodriguez was given 2 years probation and family counselling. There have been no subsequent court contacts. Rodriguez, as indicated, testified in person at the trial, and his § 739 case history is set out in Exhibit 12.
Juan Santiago, 12 years old with no prior court contact, was arrested on April 11, 1978, and charged with first degree assault on a 71 year old woman. The offense was alleged to have occurred at 6:00 P.M. on the street and to have resulted in injury to the woman. He was taken to Spofford (a secure facility)
where he was held until his § 739 hearing on April 12, before Judge Matthews. The court ordered him detained because of the seriousness of the offense and the condition of the alleged victim. A probable cause hearing was set for April 17. He had been detained for 6 days at the time of the probable cause hearing. Probable cause was found and the boy was detained at Spofford until his fact finding hearing on April 24, 1978. As a result of that hearing, he was adjudicated a delinquent and was ordered detained further at Spofford for psychological testing and investigation. At his dispositional hearing on May 19, 1978, he was released to the custody of his mother on 2 years probation. Since his release, he has had no further contact with the court. (Exhibit 13)
Jerome Basnight, 14 years old, was arrested on October 14, 1977, and charged with first degree robbery and criminal possession of a weapon. He is alleged to have acted with 2 others to steal a pocketbook at gunpoint. He was released to the custody of his mother by the police. A § 739 hearing was held on October 20, 1977, before Judge Ferrara, 6 days after the event. The boy was ascertained to be registered in school, to be a resident of Staten Island and to have no prior criminal record. The judge detained him because the matter was "quite serious," and the boy seemed involved in bad company. A probable cause hearing was held on October 24. He had been detained 4 days at the time of the probable cause hearing. Probable cause was found, and he remained in custody until a fact finding hearing on November 1. He was adjudicated a delinquent at that hearing on the robbery charge, and disposition was reserved. At the dispositional hearing on November 29, 1977, Basnight was placed on probation for one year under the supervision of the County of Richmond. (Exhibit 10) Basnight testified at trial that he was registered in McKee Vocational High School in Staten Island, and that because of the time spent in detention, he lacked the necessary points to qualify for auto shop training because he could not make up the deficiency.
Gregory Martin, 14 years old, was arrested on December 13, 1977, charged with robbery and assault with criminal possession of a weapon for striking another youngster with a loaded revolver and stealing his jacket and sneakers. A § 739 hearing was held on December 14, before Judge Ferrara. Martin had no prior record. Citing the lateness of the hour when the crime occurred, that the boy had given the police a false address and the loaded weapon, the judge ordered Martin detained. At the December 19 probable cause hearing, probable cause was established. He had been detained 6 days before this hearing. The fact finding hearing held December 27-29, adjudicated Martin a delinquent and guilty on all counts. At the February 14, 1978 dispositional hearing, he was given 2 years probation. (Exhibit 11)
Luis Rosario, 14 years old, together with 4 others, was charged with an attempt on March 2, 1979, to rob two men. It was alleged that a gun was used and that Luis and his companions beat the two men about the head with sticks. Luis was released. A § 739 hearing was held before Judge Roache on March 15. At that time Luis had another delinquency petition pending for knifing a student, and two prior petitions had been adjusted. The court ordered him detained, noting his prior court appearances. Probable cause was found on March 21. On April 11, the boy was released to his father, and the case was terminated on September 25, 1979, without adjustment. (Exhibit 2)
Kenneth Morgan, 14 years old, was arrested on March 25, 1978, and charged with attempted robbery and threatening a 14 year old girl and her brother. A § 739 hearing was held on March 27, before Judge Moskoff. Kenneth was then on release status on another robbery charge. He was ordered detained. A probable cause hearing was apparently set for March 30, but continued until April 4, where it seems to have been combined with a fact finding hearing. He was found guilty of harassment and petty larceny. Morgan was detained 10 days before the April 4 probable cause continued hearing, and 8 days subsequent to the § 739 determination. On July 5, at a dispositional hearing, he was ordered placed with the Department of Social Services for 18 months. (Exhibit 3)
Phil Hanna, 13, and Calvin Jenkins, 15, were arrested and charged with robbery and criminal trespass on August 23, 1977, for breaking into a store and damaging equipment. A § 739 hearing was held before Judge Rigler on August 24. Hanna had had prior court contacts and Jenkins, with 2 delinquency petitions pending, was on probation. Both were ordered detained. At the August 29 probable cause hearing, Jenkins and Hanna were paroled. On October 21, 1977, their cases were dismissed for lack of prosecution. They were held in pretrial detention for 6 days before the probable cause determination. (Exhibit 4)
James Price, 13 years old, was arrested on September 11, 1978, for attempting to pull a necklace from a man's neck and was charged with robbery, assault and grand larceny. A § 739 hearing was held before Judge Ferrara on September 12. Price had had prior court contacts, but the previous charges had not been pressed. He was ordered detained, the court citing his recent court contacts. A probable cause hearing was set for September 15, and at that hearing Price admitted to grand larceny and was placed in a non-secure facility. He absconded on September 27. At the time of the probable cause hearing Price had been detained for 3 days. (Exhibit 5)
Johnny McArthur, age 15, was arrested on October 12, 1977, for pointing a loaded, cocked automatic at a 13 year old. He was charged with criminal possession of a dangerous weapon and menacing and released by the police to the custody of his mother. A § 739 hearing was held on November 28, 1977, six weeks after his arrest, before Judge Heller. He was ordered detained, the judge stating it was his policy to remand those caught with loaded .45 caliber revolvers. The probable cause hearing was scheduled for November 30, 1977, but was adjourned, and he was released to the custody of his mother. As of November 30, he had been detained for 2 days. On January 10, 1978, the matter was dismissed without prejudice. (Exhibit 6)
Christopher Cox, 13, Glen Maloney, 13, and Wade Forde, 13, were arrested on October 13, 1976, along with Clarence Smith, 13, and Alex Michael, 15, and charged with grabbing and threatening people with a weapon in an attempt to take their bus passes. They were released to the custody of their parents. A § 739 hearing was held on November 12, before Judge Roache. Smith, who had retained private counsel, was paroled as was Michael. The court ordered Cox, Maloney and Forde detained despite the intake probation officer's recommendation of parole and the fact that the three had had no prior court contact. Forde was paroled to his parent's custody on November 15, and at the November 23 fact finding hearing he was adjudicated a delinquent. Forde was placed on probation for 2 years. Cox was placed on probation on January 13, 1977, but it was subsequently revoked. Forde appears to have been held in custody for 3 days before being paroled to his mother's care. The case history does not contain any further information. (Exhibit 7)
Francisco Ramos, 15, was arrested on March 4 for breaking into a store and stealing goods and charged with burglary, petty larceny, criminal mischief and criminal possession of stolen goods. He was released to the custody of his parents. A § 739 hearing was held on March 17, 1978, before Judge Roache. He had a record of 9 prior arrests but all had resulted in adjustments and dismissals. Probation recommended release, but Judge Roache ordered him detained on the ground that prior arrests showed a likelihood that Ramos would commit a crime before the return date. A probable cause hearing was set for March 21, 1978, but the matter was continued. The final disposition of the proceeding was a discontinuance. Ramos was apparently in custody by order of the court for some 4 days until the matter was discontinued. (Exhibit 8)
Jose Cruz, 14, was charged with attempted murder and assault based on a March 7, 1977 incident in which Cruz allegedly pushed a 77 year old man down the stairs, beat him about the head and threatened him. At a § 739 hearing on March 25, before Judge Rigler, he was ordered detained in view of the severity of the charge. Probable cause was found on March 28, at which time he had been detained 3 days. The attempted murder charge was dismissed, and he was paroled in his mother's custody on April 1. On May 25, the assault charges were reduced, and the case was adjourned in contemplation of dismissal. (Exhibit 11)
Edwin Ascencio, 14, was arrested on December 12, 1977, with Edwin Rodriguez, and charged with arson and reckless endangerment for allegedly starting a fire in a subway. A § 739 hearing was held on December 13, 1977, before Judge Ferrara. Ascencio had a petition pending and had not been attending school. The judge ordered detention, citing the seriousness of the allegations as a basis. A probable cause hearing was held on December 16, 1977. Ascencio admitted to committing the offense and was released to his family. He had been held in custody for 4 days, 3 of them under order of the court at the time of the probable cause hearing. At the dispositional hearing on January 26, 1978, he was placed on 2 years probation. (Exhibit 12)
James Peebles, 15 years old, was arrested and charged with arson for allegedly setting fire on July 4, 1978, outside the door of the complainant's apartment while the complainant and his family were inside. A § 739 hearing was held on July 5, before Judge Quinones. The boy was ordered detained, the judge citing the seriousness of the crime as the basis for his action. At the July 10 probable cause hearing Peebles admitted to reckless endangerment. At that time he had been in custody for 6 days. Detention was continued for psychological evaluation. On July 20, 1978, he was released to his mother. Parole status was revoked in December, 1978, and at the dispositional hearing he was placed with the Division for Youth. (Exhibit 14)
Jeffrey McCain, 15, was arrested on May 23, 1978. A § 739 hearing was held on May 24, 1978, before Judge Doran. The boy had been arrested on robbery charges on 3 prior occasions that same month, and petitions for these offenses were pending. He was ordered detained. A probable cause hearing was set for May 28, 1978, but was postponed. The matter was eventually dismissed because of lack of proof beyond a reasonable doubt to support the charges. McCain was held in custody for a least 4 days before the scheduled May 28 probable cause hearing. The record does not disclose the date of the boy's release. (Exhibit 15)
Carl Harris, 15, and Michael Taylor, 14, were arrested on March 5, 1977, for possession of stolen property and released. A § 739 hearing was held 12 days later on March 17, before Judge Rigler. In view of prior court contacts, the court ordered both detained. On March 21, 1977, both were adjudicated delinquent. By that time they had each spent 4 days in detention. At the dispositional hearing on May 16, 1977, Carl was placed on probation and Michael with the Commissioner of Social Services. (Exhibit 16)
Victor Melendez, 15, was arrested on July 11, 1977, for breaking and entering a school building at night and causing $ 1,500 in damages. A § 739 hearing was held on July 13, 1977, before Judge Gartenstein. This was Melendez's fourth arrest since March, 1977. He was ordered detained. A probable cause hearing was set for July 19, but was adjourned and was finally held on August 12, 1977, at which time Melendez was adjudicated a delinquent. On December 16, 1977, he was placed on one year's probation. It is unclear from the record what part of the period from July 11 to August 12, Melendez spent in detention.
Tyrone Parson, 15, was arrested on November 6, 1976, for promoting gambling and for possession of a gambling device and released. At a § 739 hearing held on December 1, he was ordered detained. Seven prior court petitions were then pending. At the probable cause hearing on December 6, the petition was dismissed because the offense alleged did not come within the provisions of the penal law. He had been detained for 5 days between his § 739 and probable cause hearings. (Exhibit 18)
Geraldo Delgado, 15, was arrested on March 4, 1976, for stabbing and killing another boy. A § 739 hearing was held on March 5, 1976, before Judge Matthews. He ordered the boy detained because of the seriousness of the crime. Probable cause was found on March 10. Delgado had been detained for 5 days between his § 739 hearing and probable cause determination. Delgado was adjudicated a delinquent on April 4, 1976, and psychological tests were ordered. On July 7, 1976, he was released to his mother's custody and placed on one year's probation subject to treatment at Lincoln Hospital Adolescent Treatment Center. (Exhibit 19)
Tony Gomez, 15, was arrested on October 26, 1978, for allegedly assaulting and robbing a 77 year old woman and charged with grand larceny, robbery, assault and possession of stolen property. A § 739 hearing was held on October 27, 1977, before Judge Ferrara. He was ordered detained. Three prior petitions for robbery and attempted rape had been terminated without adjustment. A probable cause hearing was scheduled for October 31, but was adjourned. Gomez was released on a writ of habeas corpus on November 10, 1977. At the time he had been held in custody without a probable cause adjudication for 15 days, 14 of those days were pursuant to the court's order under § 739(a)(ii). On December 7, 1977, he was adjudicated a delinquent and given a one year suspended sentence. (Exhibit 20)
Maurice Dunaway, 13, was arrested on July 22, 1976, for theft of subway bus transfers from a Transit Authority transfer box. A § 739 hearing on July 23, 1976, was held before Judge Roache. The boy was ordered detained due to alleged threats against the complainant, disobedience at home and prior court contact. Another petition for a similar offense was outstanding. A probable cause hearing was set for July 27, but was adjourned to August 3. On the latter date Dunaway was adjudicated a delinquent. He had been detained for 11 days under court order at the time of his probable cause hearing on August 3. Thereafter he remained in custody until October 12, 1976, and then was released to his mother while placement was explored. On April 20, 1977, he was placed with the Division for Youth for 18 months. (Exhibit 21)
Daniel Nelson, 15, was arrested on April 19, 1979, charged with petit larceny for allegedly stealing a radio valued at $ 85, and released to the custody of his parents. A § 739 hearing was held on May 3, 1979, before Judge Roache. At the time, Nelson was on probation on a prior charge and was ordered detained. The probable cause hearing was held on May 6, and he was adjudicated a delinquent. At the time of his probable cause hearing he had been detained for 3 days. On December 12, he was placed with the Commissioner of the Department of Social Services for 18 months. (Exhibit 22)
Daniel Gregoire, 15, was arrested on August 23, 1977, on charges of burglary and criminal possession of stolen property. A § 739 hearing was held on September 20, 1977, before Judge Roache. Six prior delinquency petitions against this juvenile had been dismissed. His father told the judge that he could not control the boy and did not want him home. He was ordered detained and remained in custody until September 23, 1977, when he was paroled to his brother. Probable cause was found on September 29, and at the dispositional hearing he was placed in St. Vincent's for 18 months. Gregoire had spent a total of 3 days under court ordered detention. (Exhibit 23)
Carlos Lopez, 13, was arrested on August 30, 1977, for breaking and entering a store at 4:00 A.M., and was charged with burglary, petit larceny and criminal mischief. A § 739 hearing was held on August 31, 1977, before Judge Rigler. He was ordered detained because of family problems and five pending petitions. A probable cause hearing was set for September 6, 1977. On September 9, he absconded, was returned and absconded again on September 22, 1977, and again was returned. On November 10, 1977, the case was adjusted in contemplation of dismissal. It is difficult to ascertain the precise number of days this juvenile was detained, but it seems to have been at least 7 days before the probable cause hearing. (Exhibit 24)
Kevin West, 14, was arrested on May 31, 1971, and charged with grand larceny, jostling and resisting arrest, for taking property from a 71 year old woman and striking the arresting officer. The § 739 hearing was held on June 1, 1979, before Judge Matthews. Several outstanding petitions were then pending. West was ordered detained. On June 5, he was adjudicated a delinquent and placed with the Division for Youth for 12 months. His time in detention under court order before his probable cause hearing was 4 days. (Exhibit 25)
Carlos Fargas, 14, was arrested on April 24, 1979, for threatening to strike the complaining witness with a broomstick. He was charged with robbery, grand larceny, unlawful imprisonment and possession of stolen property. He was released pending a § 739 hearing which was held on June 6, before Judge Pollard. The failure of his parents to accompany him to court meant a lack of supervision to the judge and created a likelihood of further delinquent acts. For these articulated reasons he was detained. On June 11, he was paroled to the custody of his parents. He had been in pretrial detention under court order for 5 days. (Exhibit 26)
Jody Allen, 12, was arrested on May 25, 1979, for beating an elderly woman who had to be hospitalized. There had been seven previous court contacts but no findings. He was charged with assault and attempted robbery and released. The § 739 hearing was held on June 1, before Judge Pitaro. He was ordered remanded. The complaining witness did not prosecute the matter. Allen was released to the custody of his grandmother on June 4. He had been detained under court order for 3 days before being released. The petition was withdrawn on June 25. (Exhibit 27)
Emmett Jacobs, 14, was arrested for stealing a watch on May 30, 1979, and charged with robbery and grand larceny. A § 739 hearing was held on May 31, before Judge Leddy. Three prior petitions had been filed, but no findings had resulted. Noting his prior court contacts, the court ordered Jacobs detained. At the probable cause hearing on June 4, Jacobs admitted to petit larceny. At final disposition he was placed with the Division for Youth for 12 months. He had been detained 4 days before his probable cause adjudication. (Exhibit 28)
James Ancrum, 15, was arrested on August 16, 1979, for attempting to take a necklace off a man's neck. The man was allegedly beaten and thrown down a flight of stairs. A § 739 hearing was held on August 21, before Judge Ferrara after an order was issued removing the case from criminal court. Probation recommended release, but Ancrum was ordered detained, in view of the lateness of the hour when the act was allegedly committed. On August 24, probable cause was found. He was released to his mother's ...