4. Schall v. Martin
Schall established the acceptability of detentions based on
the discretion of an expert decision maker.
By limiting its holdings to juveniles, who have historically not been granted
full constitutional protection, the Court was able to assert the right to detain
individuals to prevent future crimes without great controversy.
In United States ex rel. Martin v. Strasburg,
the district court confronted both the constitutional basis for a determination
of dangerousness and the theory of regulatory versus punitive detention. The
case arose from a class action habeas corpus petition 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 New York Family Court
Act s 739(a)(ii)."'
Three named petitioners participated in the trial on the merits,
and the records of thirty-three other detainees were introduced into evidence.
Many of the petitioners were detained on suspicion of serious crimes.
The habeas corpus petition challenged the constitutionality of *365
New York law allowing the preventive detention of minors.
The New York statute provided that the state could detain a minor, if, in the
judge's discretion, it appeared that there was a substantial probability that
the minor would not return on the court date, or that the minor would commit
an act that would be a crime if committed by an adult.
The judge's determination was based on the intake probation officer's report
and the judge's own evaluation and experience.
The petitioners alleged that the statute violated the Due Process
and Equal Protection Clauses of the Fourteenth Amendment,
contending that the judge's discretion under section 739 was so broad as to
They also contended that
the statute treated juveniles differently from adults, thus violating their
right to equal protection.
court addressed three issues: 1) whether the detention of juveniles is punishment
or a regulatory action;
2) whether detention
without a full adversary proceeding violates due process considerations,
and 3) *366
whether it is proper for a judge to make a determination
of future dangerousness without either detailed standards or expert testimony.
The district court focused its inquiry on the character of the
detention involved--physical confinement--rather than on the legislative intent
behind the statute. The court reasoned that a state cannot preemptorily label
a statute as regulatory regardless of its actual effect on the detained individual.
In this case the court was persuaded that the stigmatization associated with
incarceration amounted to punishment.
This broad view of punishment is rooted in Supreme Court precedent:
It would be archaic to limit the definition of punishment' to
'retribution.' Punishment serves several purposes: retributive, rehabilitative,
deterrent and preventive. One of the reasons society imprisons those convicted
of crimes is to keep them from inflicting future harm, but that does not make
imprisonment any the less punishment."'
Once the district court determined that the statute imposed
a criminal sanction through a civil proceeding, it was inexorably driven to
conclude that "pretrial detention without a prior adjudication of probable cause
is, itself, a per se violation of due process."'
The court was most concerned with the latitude that the statute
gave a judge in determining whether to detain an individual.
The court heard extensive testimony on the hazards of predicting future dangerousness
and concluded that dangerousness cannot be predicted with any "acceptable degree
Adopting public health
the court expressed
concern that predictions of future dangerousness tend to overinclusiveness,
so that there are too many "false positives."'
After examining the evidence presented by clinical
and statistical 
methods of predicting
future dangerousness, the court found it unreasonable to accept that a family
court judge, whose only information is derived from the accused's brief appearance
before the court, can determine future behavior.
The more difficult issue was whether the district court would accept a properly
qualified professional decision made in the peremptory manner that is mandated
by the circumstances of a juvenile detention hearing.
Not only would it be expensive to make detailed investigations of each detainee,
it would also take considerable time to make a particularized determination
in each case involving testing and interviewing the detainee, collecting background
information, and conferring with social workers.
If, during this time, the state were to keep the juvenile in custody, it would
be with even less procedural protection than the statute at issue provided.
If the juvenile were not detained, he or she might commit more crimes or fail
to appear before the court.
did not address these state concerns, but instead attacked the very notion of
detention, assailing the premise that future dangerousness can be predicted.
This line of argument implies that the detention of minors is constitutionally
permissible, even if based on particularized determinations of future dangerousness.
In affirming the district court's decision, the Court of Appeals
for the Second Circuit predicated its analysis on the assumption that "[t]he
presumption of innocence and the requirement that guilt be proven beyond a reason
doubt are important elements of Due Process itself . . . . "
Although a focus on the presumption of innocence usually leads to an absolute
prohibition on pretrial detention, the court of appeals in this case examined
the evidence on the relationship between detention and eventual adjudication.
The court accepted defendant's assertions that at least two-thirds of all persons
detained pursuant to section 739 were eventually released without being sentenced
to additional detention as a punishment and therefore should not have been detained
The appeals court held that
this limited congruence between final adjudication and preventive detention
failed to prove a compelling government interest in pretrial detention, and
that the statute was unconstitutional:
Our decision is strictly limited to the precise issue before
us. We hold only that pre-trial detention may not be imposed for anticrime purposes
pursuant to substantively and procedurally unlimited statutory authority when,
in all likelihood, most detainees will either not be adjudicated guilty or will
not be sentenced to confinement after an adjudication of guilt.
The appeals court found that the detention served as a "punishment
imposed without proof of guilt established according to the requisite constitutional
The Supreme Court reviewed the court of appeals
decision in Schall v. Martin,
the question of "fundamental fairness"' under the Due Process Clause in this
context, focusing on two questions: "First, does preventive detention under
the New York statute serve a legitimate state objective?"
"And, second, are the procedural safeguards contained in the FCA [Family Court
Act] adequate to authorize the pretrial detention of at least some juveniles
charged with a crime?" The first question effectively transformed the lower
courts' terminology of "pre-trial detention"' and "'compelling governmental
into "preventive detention"'
and "legitimate state objective."'
a result, the Court shifted the analysis away from the criminal context and
toward public health concepts and tests.
The Supreme Court quickly defused the issue of punishment without
adjudication by stressing that minors may benefit when the state provides detention
and thus 'protect[s] the juvenile from his own folly.'
Court indirectly addressed the legitimacy of the state's interest in pretrial
detention by referring to "[t]he 'legitimate and compelling state interest'
in protecting the community from crime . . . . "
This interest is not diminished by the age of the offender, but may in fact
be enhanced by the high rate of recidivism among juveniles.
The Supreme Court bolstered its reasoning by reference to the large number of
states that have adopted preventive detention for minors.
With this commentary the Supreme Court completely transformed the District Court's
absolute rejection of the statute as punishment without due process into a question
of balancing the right of society to protect itself against the right of a minor
to engage in youthful folly. As a balancing question, the Supreme Court held
that the statute provided for an allowable regulatory *370
The critical feature in Schall that characterizes it as a prevention
case is the statute's broad grant of authority to expert decision makers, who
determine whether an individual should be detained. The District Court, accepting
extensive expert testimony on the appropriateness and accuracy of predictions
of future dangerousness, concluded that these determinations are inherently
arbitrary, and held therefore that the statute was an unconstitutional delegation
The Supreme Court rejected
these evidentiary attacks on the propriety of determinations of future criminal
Our cases indicate . . . that from a legal point of view there
is nothing inherently unattainable about a prediction of future criminal conduct.
Such a judgment forms an important element in many decisions, and we have specifically
rejected the contention, based on the same sort of sociological data relied
upon by appellees and the District Court, "that it is impossible to predict
future behavior and that the question is so vague as to be meaningless."'
The Supreme Court found that it is precisely this difficulty
in determining future criminal conduct that justifies granting the judge broad
The Court's balancing of
uncertainty turns the trial court's analysis on its head: controversy over the
methodology for determining future criminal conduct was found to validate a
vague law rather than undermine it. Rejecting sociological evidence that the
judges' decisions could not be made correctly, the Supreme Court deferred to
the judge as expert decision maker. Although this reasoning is consistent with
public health jurisprudence, in which a health officer's decision or act in
the face of uncertainty is acceptable, an analogous delegation of decision making
power is anathema in the criminal law context.
The Supreme Court's finding that the state may regulate individual
behavior in the face of controversy over the scientific basis for that regulation
underscores an important distinction between the jurisprudence of prevention
and the jurisprudence of individual liberties developed in criminal law. Criminal
law demands proof beyond reasonable doubt, but science seldom provides answers
to sociologic problems that can withstand a "beyond a reasonable doubt"' analysis.
Even issues as clear as the value of childhood immunizations are endlessly debated--yet
few would *371
argue that this debate should be allowed to interfere
with the involuntary immunization of children.
The Supreme Court's satisfaction with the statute's procedural
protections is another parallel to public health jurisprudence. The Court found
that the statute in Schall provided for notice, a hearing, and a statement of
facts prior to detention.
procedural protections are rudimentary in nature,
the majority found them satisfactory, dismissing the Court of Appeals' conclusion
that the proceedings were too brief to allow appeal through habeas corpus.
The Supreme Court determined that the record provided at the hearing, combined
with the right of appeal to the New York Supreme Court, made it reasonable to
consider habeas corpus a part of the protections in a section 320 detention.
This reliance on habeas corpus for "correcting on a case-by-case basis any erroneous
detentions . . . "
reflects the public
health emphasis on procedural flexibility,
rather than the criminal law emphasis on certainty and procedural regularity.
Detailed procedural safeguards cost time and money. When the
concern is prevention of future harm, these costs limit the state's ability
to act. A prevention analysis starts with the premise that there are some circumstances
in which procedural protections are incompatible with societal self-defense.
The simplest example would be a police action to interrupt *372 a violent
crime in progress: the police are not required to have a probable cause hearing
before breaking up a bank robbery that is in progress. They do not need to obtain
a warrant before shooting a person who is shooting at them. There is universal
agreement that imposing procedural requirements in these circumstances would
make it impossible to prevent the threatened harm. Conversely, a criminal law
analysis starts with cold facts: the crime has been committed. There is no urgency
for action. Unlike the crime in progress, there is uncertainty about the guilt
of the accused. While the expense of procedural protections may still be troublesome,
the delay is not crippling.
The prevention cases assume that the violent crime in progress
is one extreme in a continuum of situations in which the probability of harm
is great enough to outweigh the benefits of full due process protections.
467 U.S. 253 (1984).
Although Schall established
the state's right to detain juveniles prior to an adjudication of guilt or delinquency,
it did not directly overrule Winship or Gault. The Schall Court moved away from
the emphasis on due process process protections to a regulatory model for detention.
See infra notes 277-81 and accompanying text.
513 F. Supp. 691 (S.D.N.Y.
Id. at 693. While the
detentions were of a short duration, jurisdiction was granted based on a recurring
Edwin Rodriguez was
arrested . . . and charged with arson and reckless endangerment . . . .
Juan Santiago, 12 years old . . . was arrested . . . and charged
with first degree assault on a 71 year old woman. . . .
Jerome Basnight, 14 years old, was arrested . . . and charged
with first degree robbery and criminal possession of a weapon. . . .
Johnny McArthur, age 15 was arrested . . . for pointing a loaded,
cocked automatic at a 13 year old. . . .
Christopher Cox, 13, Glen Maloney, 13 and Wade Forde, 13, were
arrested. . . 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
Id. at 695-97. The remainder of the petitioners were arrested
under similar circumstances. See id. at 695-700.
]. N.Y. Family Court
Act s 739; see Martin, 513 F. Supp. at 694, n.2.
The statute in question,
N.Y. Family Court Act s 739, provided:
(a) After the filing of a petition under section seven hundred
thirty-one or seven hundred thirty-two, the court in its discretion may release
the respondent or direct his detention. In exercising its discretion under this
section, the court shall not direct detention unless it finds that unless the
respondent is detained:
(i) there is a substantial probability that he will not appear
in court on the return date; or
(ii) there is serious risk that he may before the return date
do an act which if committed by an adult would constitute a crime.
The intake probation
officer must have a master's degree in social work, sociology or related fields,
or a bachelor's degree, plus two years of paid-for experience in social work
and related fields. The probation officer interviews the juvenile for ten to
forty minutes and investigates the arrest record. The officer may either 'adjust'
the case (defer a decision) or refer it to the court with recommendations. See
513 F. Supp. at 701.
In deciding whether
juveniles should be detained, each judge must rely on his or her own subjective
judgment, based on the limited information available at court intake and whatever
personal standards the judge has developed in exercising discretionary authority
under the statute. Id. at 702.
Id. Petitioners argued
that the subjective prediction of future misconduct, which s 739(a)(ii) authorized
as the basis for the pretrial detention of juveniles was a vague, arbitrary,
and capricious standard and that no rational prediction was possible under the
statutory scheme. Id.
"The state cannot escape
the obviously punitive nature of detention under s 739 by labeling the statute
'preventive' and 'regulatory,' since 'even a clear legislative classification
of a statute as "non-penal"' would not alter the fundamental nature of a plainly
penal statute."' Id. at 716 (citations omitted).
is not limited to deprivations based on having committed a specific, identifiable
crime. It is sufficient if the person is stigmatized as disreputable in a manner
closely analogous to the process that occurs upon a formal finding of criminal
United States v. Brown,
381 U.S. 437, 458 (1965).
513 F.Supp. at 707.
The first defect [the
vagueness of the statute] is perhaps the most pernicious. The judge is empowered
to make a prediction about the probability of an individual committing a crime
if released. No guidelines for making that determination are set out in the
statute, and none has been adopted by the court. The judge's determination is
moored to no concrete or reasonably determinable yardsticks. . . . The whole
process is riddled with subjectivity and caprice and confers upon the judge
'a license for arbitrary procedure.'
Id. (citation omitted).
Id. at 709-11 nn.31-32.
While the Court used
public health terms to describe the problems of an imperfect screening system,
it ignored the risk to society of crimes committed by persons awaiting adjudication.
Despite the "false positives,"' a public health analysis, as conducted later
by the Supreme Court, would find this an acceptable risk-benefit ratio. See
Schall, 467 U.S. at 278-79 & n.30.
513 F. Supp. at 709.
"Clinical methods rely
on the use of trained psychiatric or social science staff, attempting a 'wide
band procedure in which a broad range of information about the individual is
gathered from sources such as interviews, social history, and projective testing."'
Id. at 711.
"In statistical prediction,
the individual is, in effect, classified in terms of the presence or absence
of the predictor variables. Given the classification, the frequencies of behaviors
can be concluded for persons belonging to the same class."' Id. at 712 (citation
If the juvenile is
in custody, he must be brought before a judge within 24 hours. The judge may
postpone the s 739 hearing for an additional 24 hours. If the juvenile is detained,
a fact-finding hearing (equivalent to a trial on the merits) must be heard within
14 days, and usually three to six days. The judge makes a determination at the
hearing based on the testimony presented. In many cases there is no one present
with personal knowledge of the alleged crime. Id. at 702.
Id. at 713. Paroling
the juvenile during a determination of future dangerousness was particularly
nettlesome to the district court:
What seems to be the most patently arbitrary action, however,
occurs in those cases in which the juvenile is paroled to the custody of his
parents or guardians after the incident, has been home on parole ranging in
the case histories in this record from roughly 5 days to over a month prior
to the s 739 hearing, and even though there is no showing of any other infraction
while on parole, the judge nonetheless orders remand purportedly because there
is a risk that the juvenile will commit a new crime before he is tried on the
instant offense. Whatever meager rationale may exist in other situations . .
. remand is wholly unjustified and unsupportable in these circumstances. . .
The literature generally
agrees that no reliable method of predicting dangerousness, whether clinical
or actuarial in nature, exists at this time. . . .
Thus, it is clear that juveniles who are subjected to s 739
detention have their freedom curtailed by judgments that are untrustworthy and
uninformed and without the requisite rationality which due process mandates.
Id. at 712.
The District Court
handed down its decision before Barefoot, which endorsed determinations of future
dangerousness. See supra subsection 3.
Martin v. Strasburg,
689 F.2d 365 (citing In re Winship, 397 U.S. 358 (1970)).
The Court of Appeals
accepted defendant's assertions that there were three classes of detainees for
whom detention was not warranted: 1) persons eventually released without adjudication;
2) persons detained on mistaken information; and 3) persons later adjudicated
guilty but released for time served. Martin v. Strasburg at 373.
Id. In contrast to
the absolutist position of the district court, the appeals court did not strike
the statute for vagueness.
467 U.S. 253 (1984).
Strasburg, 689 F.2d
Id. at 264. The Court
also referred to the "weighty social objective"' of crime control.
Id. at 264. The Court
also referred to the "weighty social objective"' of crime control.
Id. at 266-67 n.16.
The Court did not find that wide usage in itself is determinative of whether
a practice satisfies due process requirements. Wide usage does, however, rebut
the argument that the practice in question does not offend "'some principle
of justice so rooted in the traditions and conscience of our people as to be
ranked as fundamental."' Id. at 268 (quoting Snyder v. Massachusetts, 291 U.S.
97, 105 (1934)).
Schall, 467 U.S. at
274. Preventive detention serves the legitimate state objective, held in common
with every state in the country, of protecting both the juvenile and society
from the hazards of pretrial crime.
513 F.Supp. at 707.
Schall, 467 U.S. at
278-79 (footnotes and citations omitted); see also supra notes 185-87 and accompanying
467 U.S. at 279-80.
See supra notes 59-67
and accompanying text. In Jacobson v. Massachusetts, 197 U.S. 11, 28-29 (1905),
the Supreme Court noted:
If the mode adopted by the Commonwealth of Massachusetts for
the protection of its local communities against smallpox proved to be distressing,
inconvenient or objectionable to some--if nothing more could be reasonably affirmed
of the statute in question--the answer is that it was the duty of the constituted
authorities primarily to keep in view the welfare, comfort and safety of the
many, and not permit the interests of the many to be subordinated to the wishes
or convenience of the few.
Schall, 467 U.S. at
Id. at 283-86 (Marshall,
Id. at 281; see Martin
v. Strasburg, 689 F.2d at 374.
Schall, 467 U.S. at
See In re Halko, 246
Cal. App. 2d 553, 558, 54 Cal. Rptr. 661, 664 (1966) ("[A] person quarantined
without reasonable grounds is entitled to relief by habeas corpus."') However,
in In re Arata, 52 Cal. App. 380, 383, 198 P. 814 (1921), the court was careful
to point out that the issue is a factual one:
That the health authorities possess the power to place under
quarantine restrictions persons whom they have reasonable cause to believe are
afflicted with infectious or contagious diseases coming within the definition
set forth in Political Code, section 2979a, as a general right, may not be questioned.
It is equally true that in the exercise of this unusual power, which infringes
upon the right of liberty of the individual, personal restraint can only be
imposed where, under the facts as brought within the knowledge of the health
authorities, reasonable ground exists to support the belief that the person
is afflicted as claimed; and as to whether such order is justified will depend
upon the facts of each individual case.
The Law, Science & Public
Health Law Site
The Best on the WWW Since 1995!
Copyright as to non-public domain materials
See DR-KATE.COM for home hurricane and disaster preparation
See WWW.EPR-ART.COM for photography of southern Louisiana and Hurricane Katrina
Professor Edward P. Richards, III, JD, MPH - Webmaster