Bland v. United States

• Decision Date: 21 May 1973
• Docket Number: No. 72-6075,72-6075
• Citation: 36 L.Ed.2d 975,412 U.S. 909,93 S.Ct. 2294
• Parties: Jerome T. BLAND v. UNITED STATES
• Court: U.S. Supreme Court

412 U.S. 909

93 S.Ct. 2294

36 L.Ed.2d 975

Jerome T. BLAND

v UNITED STATES.

No. 72-6075.

Supreme Court of the United States

May 21, 1973

On petition for writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit.

The petition for a writ of certiorari is denied.

Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL concur, dissenting.

Petitioner was 16 years old at the time of his arrest and at the time of his indictment for armed robbery of a post office. He was charged as an adult under 16 D.C.Code § 2301(3)(A).^* He moved to dismiss the indictment, alleging that the statutory basis for prosecuting him as an adult failed to provide him with procedural due process. The District Court, 330 F.Supp. 34, dismissed the indictment and the Court of Appeals, 472 F.2d 1329, by a divided vote reversed that judgment.

Under the statute of the District of Columbia involved in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84, a juvenile, age 16 or older, who is charged with a felony might be held for trial as though he were an adult, if the Juvenile Court waived jurisdiction. Kent held that the Act, read in light of 'the essentials of due process and fair treatment,' Id., at 562, 557, 86 S.Ct. at 1057, required a hearing on whether the Juvenile Court should waive its exclusive jurisdiction over the juvenile and transfer him to the criminal court of the District. And in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, we held that where under a state junvenile court act a juvenile is declared 'delinquent' and either confined or held for regular criminal prosecution, there must be a due process hearing on the issue of 'delinquency.'

The District of Columbia Act was modified after Kent so as to give the U. S. Attorney the power to remove a juvenile from the statutory category of 'child' merely by charging him with a designated felony. The House Report No. 91-907, 91st Cong., 2d Sess., at 50, explains the reason for the change:

'Because of the great increase in the number of serious felonies committed by juveniles and because of the substantial difficulties in transferring juvenile offenders charged with serious felonies to the jurisdiction of the adult court under present law, provisions are made in this subchapter for a better mechanism for separation of the violent youthful offender and recidivist from the rest of the juvenile community.'

The 'substantial difficulties' are obviously the constitutional rights explicated in Kent and in Gault. The 'better mechanism' is the use of the short cut employed, viz: the discretion of the prosecutor. Two rather large questions are presented and they seem to me to be substantial.

First. A juvenile or 'child' is placed in a more protected position than an adult, not by the Constitution but by an Act of Congress. In that category he is theoretically subject to rehabilitative treatment. Can he on the the whim or caprice of a prosecutor be put in the class of the run-of-the-mill criminal defendants, without any hearing, without any chance to be heard, without an opportunity to rebut the evidence against him, without a chance of showing that he is being given an invidiously different treatment than others in his group? Kent and Gault suggest that those are very substantial constitutional questions.

Second. The barricade behind which the prosecutor operates is that this, like other prosecutions, is committed to his informed discretion, which is beyond the reach of judicial intrusion. Justice Black and I said in dissent in Berra v. United States, 351 U.S. 131, 135, 140, 76 S.Ct. 685, 691, 100 L.Ed. 1013:

'. . . it is true that under our system Congress may vest the judge and jury with broad power to say how much punishment shall be imposed for a particular offense. But it is quite different to vest such powers in a prosecuting attorney. A judge and jury act under procedural rules carefully prescribed to protect the liberty of the individual. Their judgments and verdicts are reached after a public trial in which a defendant has the right to be represented by an attorney. No such protections are thrown around decisions by a prosecuting attorney. Substitution of the prosecutor's caprice for the adjudicatory process is an action I am not willing to attribute to Congress in the absence of clear command. Our system of justice rests on the conception of impersonality in the criminal law.'

The Administrative Procedure Act, 5 U.S.C. § 701 et seq., gives the courts power to review 'agency action' and to hold it unlawful, if found to be 'contrary to constitutional right, power, privilege, or immunity.' § 706(2)(B). This arguably is broad enough to reach the...