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September 4, 1981;

J. D., R. S., and J. S., Defendants

The opinion of the court was delivered by: SWEET

The three defendants in the above-captioned action are alleged to have attempted the robbery of a branch of the Manufacturer's Hanover Trust Company in the Bronx in January, 1981. At the time of the alleged offense, all three defendants were under the age of eighteen, and were therefore "juveniles" within the meaning of that term as used in the federal Juvenile Delinquency statute, 18 U.S.C. § 5031, et seq. The government has moved to transfer these defendants to adult status pursuant to 18 U.S.C. § 5032. In opposition to the government's motion, attorneys for two of the defendants press constitutional challenges to the transfer statute. A hearing was held on the motion on August 3 and August 6, 1981. After the hearing, and while the motion was under consideration, additional information of relevance to this motion was brought to the attention of the court by letter of the Assistant United States Attorney assigned to this case. After consideration of all of the evidence before me and of the legal arguments made, I have decided, for the reasons set forth below, that the interests of justice would best be served by reserving decision on all three motions to transfer. Although the question is not free from difficulty, I have concluded that 18 U.S.C. § 5032 is constitutional.

18 U.S.C. § 5032 outlines the prerequisites for the exercise of federal jurisdiction over juvenile defendants and the procedure for transfer of juveniles to adult status. As a prerequisite to the exercise of federal jurisdiction over juveniles, it requires the government to certify that:

the juvenile court or other appropriate court of a State (1) does not have jurisdiction or refuses to assume jurisdiction over said juvenile with respect to such alleged act of juvenile delinquency, or (2) does not have available programs and services adequate for the needs of juveniles.

 In the absence of such certification, the juvenile is to be surrendered to state authorities. Id.

 If the federal court exercises jurisdiction, the juvenile is to be proceeded against as a juvenile unless he requests to be treated as an adult or:

with respect to a juvenile sixteen years and older alleged to have committed an act after his sixteenth birthday which if committed by an adult would be a felony punishable by a maximum penalty of ten years imprisonment or more, life imprisonment, or death, criminal prosecution on the basis of the alleged act may be begun by motion to transfer of the Attorney General in the appropriate district court of the United States, if such court finds, after hearing, such transfer would be in the interest of justice.

 Id. The statute provides that the following factors are to be considered by the court in determining whether the transfer would be "in the interest of justice":

The age and social background of the juvenile; the nature of the alleged offense; the extent and nature of the juvenile's prior delinquency record; the juvenile's present intellectual development and psychological maturity; the nature of past treatment efforts and the juvenile's response to such efforts; the availability of programs designed to treat the juvenile's behavioral problems.

 Id. Finally, the statute mandates that notice of the transfer hearing be given to "the juvenile, his parents, guardian, or custodian and to his counsel" and provides for the juvenile to be assisted by counsel "during the transfer hearing, and at every other critical stage of the proceedings." Id.

 The United States Attorney filed a certification with the court that a juvenile or other appropriate court of the State of New York does not have jurisdiction over these defendants with respect to this matter. This case is therefore within the jurisdiction of this court. 18 U.S.C. § 5032. See United States v. Vancier, 515 F.2d 1378, 1379 (2d Cir. 1975), cert. denied, 423 U.S. 857, 96 S. Ct. 107, 46 L. Ed. 2d 82 (1975) ("Attorney General's certification must be accepted by the district court as final.")

 I will begin by addressing the constitutional challenge to this statute. Attorneys for defendants R.S. and J.S. argue that the statute is unconstitutionally vague in its recitation of factors to be considered by the court in ruling on the transfer motion. Specifically, they argue that the statute provides no guidance as to the manner in which the court is to view and utilize proof of the defendants' "present intellectual development and psychological maturity." *fn1" They pose a clever and difficult question: if the court finds that a defendant is mature and intellectually developed, should it then conclude that he is a promising candidate for rehabilitation within the juvenile justice system, and so deny the transfer motion? Or should it conclude that, being mature and developed, he is likely to be set in his ways, unlikely to be receptive to treatment, and deserving of being held fully accountable for his own actions; and should the court therefore grant the motion to transfer? Conversely, if the defendant is found to be immature and intellectually feeble or undeveloped, should he be treated as a juvenile because there may be a chance of positive development through treatment or should he be treated as an adult because his immaturity and lack of intellectual development render the prospects for improvement bleak? The statute, these attorneys argue, supplies no answer to these questions, and so invites arbitrary and erratic interpretation and application.

 Attorneys for R.S. and J.S. couple this due process challenge with an attack based on the defendants' Sixth Amendment right to counsel. Not knowing which way these factors cut, they say they cannot effectively represent their clients because they do not know what facts they should seek to establish and what allegations they should attempt to refute. In accordance with this position, both declined to cross-examine the government's witnesses at the hearings mentioned above.

 Although it is true, as counsel contend, that the statute does not expressly state which way a court is to view psychological maturity and intellectual development in deciding a transfer motion, some guidance is provided by the statute's premises, purpose, provisions and legislative history and by judicial application of this and other juvenile statutes.

 The purpose of the statute is to channel juvenile offenders out of the adult criminal justice system and to provide for their treatment and rehabilitation. See United States v. Frasquillo-Zomosa, 626 F.2d 99, 101 (9th Cir.), cert. denied, 449 U.S. 987, 101 S. Ct. 405, 66 L. Ed. 2d 249 (1980); United States v. Hill, 538 F.2d 1072, 1074 (4th Cir. 1976); S. Rep. No. 93-1011, 93d Cong., 2d Sess. 3, reprinted in (1974) U.S.Code Cong. & Ad.News 5283, 5286. It therefore seems to evince a commitment to what has been called the "rehabilitative ideal," which underlay the creation of the juvenile justice system, and which has as its premise "a societal consensus that youthful law violators should be treated differently from adult offenders because juveniles are both less responsible for their delicts and more responsive to nonpunitive intervention." Feld, Reference of Juvenile Offenders For Adult Prosecution: The Legislative Alternative to Asking Unanswerable Questions, 62 Minn.L.Rev. 515, 516 (1978) (footnote omitted). This ideal is thus based on two distinct but related concepts, both rooted in a determinist ...

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