On appeal from the Superior Court of New Jersey, Chancery Division, Cumberland County.
King, Arnold M. Stein and Ariel A. Rodriguez. The opinion of the court was delivered by King, P.J.A.D.
[271 NJSuper Page 196] We granted the juvenile A.L.'s motion for leave to appeal*fn1 to consider a challenge to the constitutionality of the juvenile waiver statute, N.J.S.A. 2A:4A-26; see R. 5:22. The appellant, A.L., challenges N.J.S.A. 2A:4A-26(a)(3),*fn2 the section of the statute that places upon him, as a juvenile, the burden of showing the probability that he can be rehabilitated through the social services available to the family court before reaching age nineteen. A recent Family Part decision ruled that this section was unconstitutional because it conflicted with the accused's right against compelled self-incrimination. See State v. Y.B., 264 N.J. Super. 423,
624 A.2d 1038 (Ch.Div.1993). We conclude that the juvenile waiver statute is constitutional in this respect and that the transfer or referral of the prosecution of this juvenile to adult court was within the sound discretion of the Family Part Judge.
During the early hours of May 23, 1992 at the Tall Pines campground in Alloway, the juvenile allegedly seriously wounded Thomas Seely with a machete, causing a large laceration to the victim's head and nearly severing his thumb. The juvenile, age fifteen at the time, gave a statement to the police in which he admitted the attack. He said that he was angry over something the victim had said about a young woman. The juvenile allegedly was drinking heavily with a group of young men at the campsite before the attack occurred.
He was arrested and charged with first-degree attempted murder, N.J.S.A. 2C:5-1; third-degree aggravated assault, N.J.S.A. 2C:12-1(b); and fourth-degree criminal mischief, N.J.S.A. 2C:17-3. On June 17, 1992 the State moved for involuntary waiver, pursuant to N.J.S.A. 2A:4A-26 and R. 5:22-2.
The two-phase waiver hearing was held before Judge Serata on September 29 and October 29, 1993. At Phase I, the Judge found that the State had shown probable cause that A.L. committed the charged offense based on his statement and the testimony of witnesses. At Phase II, A.L. presented evidence of probable rehabilitation through the resources available to the court before age nineteen. Dr. John Rushton, a psychiatrist, testified to a "vague" plan of rehabilitation by psychiatric therapy. Dr. Rushton believed that alcohol was a precipitating factor in the event, but did not express any opinion as to whether A.L. was an alcoholic. The doctor also thought that the behavior was unlikely to recur.
On December 2, 1992 the Judge issued a written opinion granting the State's motion for involuntary waiver. The Judge based his decision on his finding that the juvenile failed to meet his
burden of showing the probability of rehabilitation through the use of procedures and services available to the court prior to reaching the age of nineteen. The Judge also gave "great weight to the nature of the offense . . . which is a first degree offense."
On July 26, 1993 the juvenile filed a motion for reconsideration of the waiver based on State v. Y.B., supra, 264 N.J. Super. 423, 624 A.2d 1038, decided on March 4, 1993. There, the Family Part Judge stated that the portion of the waiver statute placing the burden on a juvenile to demonstrate the probability of rehabilitation through the resources available to the court prior to reaching the age of nineteen was unconstitutional because it violated the accused juvenile's right against compelled self-incrimination. The Judge denied A.L.'s motion for reconsideration on August 19, 1993. On August 30 A.L. moved for leave to appeal, which we granted on September 27.
Our analysis begins with the recognition that a person who commits a criminal offense while under the age of eighteen has no constitutional right to different treatment than adult offenders. The extent of any right to treatment as a juvenile is derived from statutory law and is defined by state legislatures. A state legislature is free to restrict or qualify that right, so long as it does not create an arbitrary or discriminatory classification scheme. Woodard v. Wainwright, 556 F. 2d 781, 785 (5th Cir.1977), cert. denied, 434 U.S. 1088, 98 S. Ct. 1285, 55 L. Ed. 2d 794 (1978); United States v. Bland, 472 F. 2d 1329, 1333-34 (D.C.Cir.1972), cert. denied, 412 U.S. 909, 93 S. Ct. 2294, 36 L. Ed. 2d 975 (1973). See also People v. Hana, 443 Mich. 202, 504 N.W. 2d 166, 175 (1993) ("in derogation of the common law, juvenile Justice procedures are governed by statutes and court rules that . . . courts are required to follow in the absence of constitutional infirmity").
All fifty states have provisions by which dangerous or intractable youthful offenders can be removed from the juvenile Justice system. See generally, Barry Field, The Juvenile Court
Meets the Principle of the Offense: Legislative Changes in Juvenile Waiver Statutes, 78 J.Crim.L. & Criminology 471 (1987). The mechanism most commonly used is "judicial waiver." Judicial waiver statutes provide that a Judge may transfer a juvenile to adult court, at the Judge's discretion, if certain statutory criteria are met. In those jurisdictions, the state bears the burden of presenting sufficient evidence to convince a rehabilitation-oriented court that the juvenile is not amenable to treatment and poses a threat to the community. Ibid. See, e.g., 705 Ill.Comp.Stat.Ann. § 405/5-4(3)(a) (West Supp.1993).
The federal Supreme Court reviewed this practice in Kent v. United States, 383 U.S. 541, 556, 86 S. Ct. 1045, 1055, 16 L. Ed. 2d 84, 94 (1966), where the Court characterized juvenile waiver proceedings as "a 'critically important' action determining vitally important statutory rights of the juvenile." The Kent Court extended constitutionally guaranteed due process rights available to adults in criminal trials to juvenile waiver proceedings. These rights include the right to a hearing, representation by counsel, access to information considered by the court in reaching its decision, and a statement of reasons for the waiver. Id. at 557-63, 86 S. Ct. at 1055-58, 16 L. Ed. 2d at 95-98. In Kent 's appendix, the Court identified several factors which should guide the Judge's decision including: the gravity of the offense and seriousness of injury; the maturity of the juvenile; the prior record; the responsiveness to prior rehabilitative attempts; and the ability of Dispositional alternatives available to the court to rehabilitate the juvenile or protect the public. Id. at 565-67, 86 S. Ct. at 1059-60, 16 L. Ed. 2d at 99-100. These factors have been incorporated in numerous waiver statutes, including our own. See N.J.S.A. 2A:4A-26.
During the past twenty years, a dramatic national increase in juvenile crime has led to a trend departing from the rehabilitation model. Numerous states have abandoned "judicial waiver" in favor of mechanisms which embody "just desserts" punishment-oriented policies, and which facilitate the transfer of juvenile
offenders who commit serious crimes. State v. R.G.D., 108 N.J. 1, 7, 527 A.2d 834 (1987). These waiver statutes generally fall into two categories: "legislative offense exclusion" and "prosecutorial waiver."
Offense exclusion statutes omit certain categories of serious offenses, usually major felonies, from juvenile court jurisdiction. Juveniles charged with any of the enumerated offenses are presumptively not entitled to remain in juvenile court. Some variations of this waiver mechanism, such as our New Jersey statute, require a full evidentiary hearing to allow the juvenile the chance to rebut the statutory presumption -- that the juvenile is an unfit candidate for juvenile treatment. See also Commonwealth v. Wayne W., 414 Mass. 218, 606 N.E. 2d 1323 (1993). Others provide for "automatic transfer" with no hearing. See e.g., State v. Pierre, 614 So. 2d 1309 (La.Ct.App.1993), reversed on other grounds, 631 So.2d 427 (La.1994).
The second category, "prosecutorial waiver," provides for concurrent jurisdiction between juvenile and criminal courts over major felonies. Under these statutes, the prosecutor rather than the Judge is vested with discretion to determine the forum. Generally, no waiver or transfer hearing is required. See, e.g., Fl.Stat.Ann. §§ 39.047(4)(e)(5), 39.052(2) (West 1991).
To date, neither of these waiver mechanisms has been successfully challenged on constitutional grounds. Significantly, statutes which allow transfer of juveniles solely on the basis of age and gravity of offense, without any hearing, have survived due process and equal protection challenges. See, e.g., Cox v. United States, 473 F. 2d 334, 337 (4th Cir.), cert. denied, 414 U.S. 869, 94 S. Ct. 183, 38 L. Ed. 2d 116 (1973), which upholds a federal statute authorizing a prosecutorial decision to charge a juvenile age seventeen at the time of committing a serious offense 0 as an adult without a hearing, reasoning that due process protections extend to judicial and quasi-judicial proceedings, but not to the exercise of prosecutorial decision-making; United States v. Bland, supra, 472 F. 2d at 1338, which upholds a District of Columbia Code provision
which excluded persons over age sixteen who were charged with certain serious offenses from juvenile jurisdiction without benefit of a hearing; State v. Pierre, supra, 614 So. 2d at 1312, where a statute which failed to provide for a transfer hearing or rebuttal of presumption in favor of juvenile remaining under juvenile court jurisdiction was held constitutional; Commonwealth v. Wayne W., supra, 606 N.E. 2d at 1326-28 (constitutional due process rights are not violated by juvenile transfer statute providing that, upon finding of probable cause to suspect that the juvenile committed murder, juvenile assumes initial burden of producing evidence on issues of dangerousness and amenability to rehabilitation); In the Matter of Wood, 236 Mont. 118, 768 P. 2d 1370, 1373-76 (1989) 1 (transfer statute which did not grant persons age sixteen or older who had committed certain crimes a hearing to consider mitigating factors before transferring the case to adult court did not ...