Schall established the acceptability of detentions based on the discretion of an expert decision maker.[236] 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,[237] 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)."'[238]

Three named petitioners participated in the trial on the merits, and the records of thirty-three other detainees were introduced into evidence.[239] Many of the petitioners were detained on suspicion of serious crimes.[240] The habeas corpus petition challenged the constitutionality of *365 the New York law allowing the preventive detention of minors.[241] 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.[242] The judge's determination was based on the intake probation officer's report[243] and the judge's own evaluation and experience.[244]

The petitioners alleged that the statute violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment,[245] contending that the judge's discretion under section 739 was so broad as to be arbitrary.[246] They also contended that the statute treated juveniles differently from adults, thus violating their right to equal protection.[247] The district court addressed three issues: 1) whether the detention of juveniles is punishment or a regulatory action;[248] 2) whether detention without a full adversary proceeding violates due process considerations,[249] and 3) *366 whether it is proper for a judge to make a determination of future dangerousness without either detailed standards or expert testimony.[250]

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.[251] In this case the court was persuaded that the stigmatization associated with incarceration amounted to punishment.[252] 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."'[253]

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."'[254]

The court was most concerned with the latitude that the statute gave a judge in determining whether to detain an individual.[255] The court heard extensive testimony on the hazards of predicting future dangerousness[256] and concluded that dangerousness cannot be predicted with any "acceptable degree of accuracy."'[257] Adopting public health *367 metaphors,[258] the court expressed concern that predictions of future dangerousness tend to overinclusiveness, so that there are too many "false positives."'[259] After examining the evidence presented by clinical[260] and statistical [261] 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.[262] 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.[263] 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.[264] 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.[265] The court did not address these state concerns, but instead attacked the very notion of *368 detention, assailing the premise that future dangerousness can be predicted.[266] This line of argument implies that the detention of minors is constitutionally permissible, even if based on particularized determinations of future dangerousness.[267]

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 . . . . "[268] 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 at all.[269] 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.[270]

The appeals court found that the detention served as a "punishment imposed without proof of guilt established according to the requisite constitutional standard."'[271]

*369 The Supreme Court reviewed the court of appeals decision in Schall v. Martin,[272] and considered 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?"[273] "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 interest"'[274] into "preventive detention"'[275] and "legitimate state objective."'[276] As 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.'[277]The 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 . . . . "[278] 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.[279] The Supreme Court bolstered its reasoning by reference to the large number of states that have adopted preventive detention for minors.[280] 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 detention.[281]

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 of authority.[282] The Supreme Court rejected these evidentiary attacks on the propriety of determinations of future criminal conduct:

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."'[283]

The Supreme Court found that it is precisely this difficulty in determining future criminal conduct that justifies granting the judge broad authority.[284] 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.[285]

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.[286] Although these procedural protections are rudimentary in nature,[287] the majority found them satisfactory, dismissing the Court of Appeals' conclusion that the proceedings were too brief to allow appeal through habeas corpus.[288] 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.[289] This reliance on habeas corpus for "correcting on a case-by-case basis any erroneous detentions . . . "[290] reflects the public health emphasis on procedural flexibility,[291] 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.

[235] 467 U.S. 253 (1984).

[236] 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.

[237] 513 F. Supp. 691 (S.D.N.Y. 1981).

[238] Id. at 693. While the detentions were of a short duration, jurisdiction was granted based on a recurring violation theory.

[239] Id. at 694.

[240] 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 bus passes.

Id. at 695-97. The remainder of the petitioners were arrested under similar circumstances. See id. at 695-700.

[241] ]. N.Y. Family Court Act s 739; see Martin, 513 F. Supp. at 694, n.2.

[242] 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.

Id.

[243] 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.

[244] 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.

[245] Id. at 704.

[246] 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.

[247] Id. at 704.

[248] Id. at 705.

[249] Id. at 707.

[250] Id.

[251] "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).

[252] "However, 'punishment' 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 guilt."' Id.

[253] United States v. Brown, 381 U.S. 437, 458 (1965).

[254] 513 F.Supp. at 707.

[255] 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).

[256] Id. at 709-11 nn.31-32.

[257] Id. at 709.

[258] 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.

[259] 513 F. Supp. at 709.

[260] "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.

[261] "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 omitted).

[262] Id.

[263] 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.

[264] See id. at 711-12.

[265] 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. . . . "

Id.

[266] 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.

[267] The District Court handed down its decision before Barefoot, which endorsed determinations of future dangerousness. See supra subsection 3.

[268] Martin v. Strasburg, 689 F.2d 365 (citing In re Winship, 397 U.S. 358 (1970)).

[269] 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.

[270] Id. at 374.

[271] Id. In contrast to the absolutist position of the district court, the appeals court did not strike the statute for vagueness.

[272] 467 U.S. 253 (1984).

[273] Id. at 263-264.

[274] Strasburg, 689 F.2d at 373.

[275] Schall at 263.

[276] Id. at 264.

[277] Id. at 264. The Court also referred to the "weighty social objective"' of crime control.

Id.

[278] Id. at 264. The Court also referred to the "weighty social objective"' of crime control.

Id.

[279]Id. at 264-65.

[280] 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)).

[281] 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.

[282] 513 F.Supp. at 707.

[283] Schall, 467 U.S. at 278-79 (footnotes and citations omitted); see also supra notes 185-87 and accompanying text.

[284] 467 U.S. at 279-80.

[285] 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.

[286] Schall, 467 U.S. at 275.

[287] Id. at 283-86 (Marshall, J., dissenting).

[288] Id. at 281; see Martin v. Strasburg, 689 F.2d at 374.

[289] Schall, 467 U.S. at 281.

[290] Id.

[291] 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.