
    The People of the State of New York ex rel. Robert F. Wayburn, Law Guardian, on Behalf of Charles L. (Anonymous), Respondent, v Harriet Schupf, as Acting Director of Detention Services, Human Resources Administration, Juvenile Center for Boys, Appellant.
    Argued March 22, 1976;
    decided May 13, 1976
    
      
      W. Bernard Richland, Corporation Counsel (Leonard Koerner, L. Kevin Sheridan and Diane R. Eisner of counsel), for appellant.
    Subdivision (b) of section 739 of the Family Court Act, which permits the detention of a juvenile prior to the fact-finding hearing, where there is a serious risk that the juvenile before the return date will commit another criminal act does not violate the due process and equal protection clauses of the Federal and State Constitutions. (People ex rel. Guggenheim v Mucci, 32 NY2d 307; Fhagen v Miller, 29 NY2d 348, 409 US 845; Matter of James, 22 NY2d 545; Baldwin v Lewis, 300 F Supp 1220, 442 F2d 29; McKeiver v Pennsylvania, 403 US 528; Matter of Gault, 387 US 1; Matter of Addison, 20 AD2d 90; United States ex rel. Murray v Owens, 465 F2d 289, 409 US 1117; People v Fitzgerald, 244 NY 307; Matter of Daniel D., 27 NY2d 90, 403 US 926.)
    
      Martin Guggenheim, William R. Sneed and Charles Schnitsky for Charles L., respondent, and Robert F. Wayburn, Law Guardian in person, on behalf of Charles L., respondent.
    Subdivision (b) of section 739 of the Family Court Act, which permits the detention of a juvenile prior to a fact-finding hearing where there is a serious risk that the juvenile before the return date will commit another criminal act, violates the equal protection and due process clauses of the Federal and State Constitutions. (People ex rel. Schweizer v Welch, 40 AD2d 621; Morey v Doud, 354 US 457; United States v Carolene Prods. Co., 304 US 144; Matter of Patricia A., 31 NY2d 83; Shapiro v Thompson, 394 US 618; Dunn v Blumstein, 405 US 330; N. A. A. C. P. v Alabama, 357 US 449; Papachristou v City of Jacksonville, 405 US 156; Reed v Reed, 404 US 71; Matter of Arthur M., 34 AD2d 761.)
    
      Louis J. Lefkowitz, Attorney-General (Jules E. Orenstein, Samuel A. Hirshowitz and Gabriel I. Levy of counsel), in his statutory capacity under section 71 of the Executive Law.
    Subdivision (b) of section 739 of the Family Court Act when read to permit detention of a juvenile only after a probable cause hearing, if the Family Court Judge should determine that there is a danger of detriment to the welfare of a child by allowing him to remain exposed to the conditions that have caused or contributed to his alleged state of delinquency in that there is a serious risk that he may do an action which if committed by an adult would constitute a crime does not violate the due process and equal protection clauses of the Federal and State Constitutions. Guidry v United States, 317 F Supp 1110, 433 F2d 968; People ex rel. Guggenheim v Mucci, 32 NY2d 307; People v Lewis, 260 NY 171; Matter of Samuel W., 24 NY2d 196, revd on other grounds sub nom. Matter of Winship, 397 US 358; Matter of Gault, 387 US 1; McKeiver v Pennsylvania, 403 US 528; Minnesota v Probate Ct., 309 US 270; Jacobson v Massachusetts, 197 US 11; Matter of Van Berkel v Power, 16 NY2d 37; Richardson v Belcher, 404 US 78.)
   Jones, J.

We hold that the provision of the Family Court Act that authorizes pretrial detention of a youth charged as a juvenile delinquent when there is a serious risk that he may commit a criminal act before the return date of the petition does not violate the equal protection or due process provisions of our Federal or State Constitutions.

On October 8, 1974 a petition was filed in the Family Court of Kings County alleging that the 15-year-old youth on whose behalf this habeas corpus proceeding was instituted had committed acts which, if committed by an adult, would constitute the crimes of murder in the second degree, manslaughter in the first degree, assault in the first degree, reckless endangerment in the first degree, criminal possession of stolen property in the third degree, and menacing. On October 11, after a hearing, a finding of probable cause was made, and after additional testimony on the question of possible detention was received the court ordered the youth detained pending a fact-finding hearing on the petition to be held on October 23. In ordering the detention the court expressly stated that it had no doubt about the youth’s appearance in court on the trial date but that there was a likelihood that he would commit another crime unless detained. Thus, the detention was predicated solely on subdivision (b), without reliance on subdivision (a), of section 739 of the Family Court Act, which provides:

"§ 739. Release or detention after filing of petition and prior to order of disposition.
"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:
"(a) there is a substantial probability that he will not appear in court on the return date; or
"(b) there is a serious risk that he may before the return date do an act which if committed by an adult would constitute a crime.”

Thereafter the present habeas corpus proceeding was instituted and an order of release pending the hearing was issued by a Justice of the Supreme Court who concluded that subdivision (b) of section 739 is violative of the equal protection clause because it authorizes pretrial detention of juveniles charged with criminal behavior while there is no comparable authority for pretrial detention of adults similarly charged (cf. CPL 510.30). Respondent has taken a direct appeal to this court pursuant to CPLR 5601 (subd [b], par 2) on the ground that the only issue involved is the constitutionality of the statute.

We are informed that since this appeal was taken to our court relator-respondent has been adjudicated a juvenile delinquent and after a dispositional hearing has been placed at the New York training school. Thus, it may be said that any determination we may make has been rendered moot as to Charles L. Because the situation is likely to recur, however, and the substantial issue may otherwise never be reached (in view of the predictably recurring happenstance that, however expeditiously an appeal might be prosecuted, fact-finding and dispositional hearings normally will have been held and a disposition made before the appeal could reach us), both parties urge us to retain the present appeal and we decline to dismiss it on the ground of mootness (People ex rel. Guggenheim v Mucci, 32 NY2d 307, 310).

We turn then to the equal protection and due process contentions.

We agree with the conclusion at Special Term that any pretrial detention impinges on the right to liberty, a fundamental right that is recognized in the constitutional sense as carrying a preferred status and so is entitled to special protection. Accordingly, the legislative differentiation here in treatment between youths and adults is to be examined under strict scrutiny and may be justified only by the existence of a compelling State interest to be served by the differentiation, and even then only if no less restrictive means are available to satisfy that compelling State interest. (Dunn v Blumstein, 405 US 330, 342-343; Shapiro v Thompson, 394 US 618; Montgomery v Daniels, 38 NY2d 41, 59.)

We disagree with Special Term, however, that under this strict standard the present statute works an impermissible denial of equal protection or due process. In our view there is a compelling State interest to be served in differentiating between juveniles charged with delinquency and adults charged with crime with respect to preventive detention, and in the very nature of the process there is no less offensive means to achieve the desired objective.

Subdivision (b) of section 739 authorizes pretrial detention to prevent another crime from being committed by the juvenile. This statute reflects the merger of two fundamental concerns of the State—to protect the community prospectively from the perpetration of serious crimes and to protect and shelter children who in consequence of grave antisocial behavior are demonstrably in need of special treatment and care. The cast of the statutory provision is noteworthy. The predicate which triggers the discretionary authority under the statute is a finding. that there is a serious risk that the juvenile charged with delinquency may commit another criminal act—an objective fact. The statute omits to specify whether, on the basis of such a predicate finding, detention may be ordered for the protection of the public or for the benefit of the juvenile or both, and requires no supplemental statement by the court of the subjective purpose for which the detention is ordered. Thus, in the present case the record contains no recital by the Family Court Judge of the purpose behind the detention of Charles L.

Our society recognizes that juveniles in general are in the earlier stages of their emotional growth, that their intellectual development is incomplete, that they have had only limited practical experience, and that their value systems have not yet been clearly identified or firmly adopted. In consequence of what might be characterized as this immaturity, juveniles are not held to the same standard of individual responsibility for their conduct as are adult members of our society. That this is so is made manifest by the establishment and continuation of youthful offender procedures (CPL art 720) and juvenile delinquency proceedings (Family Ct Act, art 7), under neither of which is there any accumulation of a criminal record or exposure to second-felony offender sentencing under section 70.06 of the Penal Law.

For the same reasons that our society does not hold juveniles to an adult standard of responsibility for their conduct, our society may also conclude that there is a greater likelihood that a juvenile charged with delinquency, if released, will commit another criminal act than that an adult charged with crime will do so. To the extent that self-restraint may be expected to constrain adults, it may not be expected to operate with equal force as to juveniles. Because of the possibility of juvenile delinquency treatment and the absence of second-offender sentencing, there will not be the deterrent for the juvenile which confronts the adult. Perhaps more significant is the fact that in consequence of lack of experience and comprehension the juvenile does not view the commission of what are criminal acts in the same perspective as an adult. It serves to refer to the common recognition of the high school "lark”, or to the relative indifference which the young attach, for instance, to shoplifting or to "borrowing” an automobile and the unconcern with which they view the possibility of being apprehended. There is the element of gamesmanship and the excitement of "getting away” with something and the powerful inducement of peer pressures. All of these commonly acknowledged factors make the commission of criminal conduct on the part of juveniles in general more likely than in the case of adults. Antisocial behavior of the young may be dismissed, or even be expected, as a "prank”, a characterization never applied to similar conduct of an adult. In consequence of these and other like considerations, protection of the public peace and general welfare justifies resort to special procedures designed to prevent the commission of further criminal acts on the part of juveniles as differentiated from adults.

From the other aspect, the State has a recognized interest in making provision for the protection and training of children in difficulty, a concern which is at the heart of the juvenile justice system. (Matter of Samuel W., 24 NY2d 196, 197, revd on other grounds sub nom. Matter of Winship, 397 US 358.) This objective, for which there is no matching counterpart with respect to adults, is advanced by use of the statutorily authorized system of pretrial detention for juveniles. For the reasons discussed above and others, it may very well be concluded that there is a high likelihood that the juvenile will fall into further criminal activity if he is returned to the same environment and setting in which his present alleged misconduct occurred. The same factors dictate the desirability of protecting the juvenile from his own folly. (Baker v Smith, 477 SW2d 149, 151 [Ky].)

Whatever may be the articulated explanation or however persuasive one assigned reason may appear in comparison with another, it cannot be denied that society, the Legislatures and the courts all recognize that, while the individual rights of children as well as of adults are entitled to constitutional protection, there are significant, even compelling, differences between children and adults which permit different procedures with respect to criminal behavior without denial of constitutional equal protection or due process. (McKeiver v Pennsylvania, 403 US 528; Matter of William M., 3 Cal 3d 16, 30, n 24.)

Concluding then, as we do, that there is a compelling State interest in making provision for pretrial detention of juveniles when none isñnade for adults, we also conclude that it cannot be said that a less burdensome means could be found to achieve the objective. Analytically the compelling State interest is to prevent the commission of further criminal acts. The means chosen is physically to remove the offender from the arena of possible action. The means in the very nature of the objective must be "detention” in some form. Neither respondent, nor anyone else, advances any hypothesized alternative, less burdensome form of "detention” than the preventive detention authorized by subdivision (b) of section 739.

The separately formulated claim that subdivision (b) of section 739 works a denial of due process of law is not persuasive. To a very large extent the considerations of equal protection and due process are the same and much of what has been said with respect to equal protection applies as well to due process, surely with respect to the assertions that the pretrial detention provision of section 739 is irrational. Nor can we accept the assertion, advanced under a due process heading and accepted in the concurring opinion of Judge Fuchsberg that because the degree of probability of repetition of criminal behavior cannot be predicated with scientific precision, there is ineluctably involved an unconstitutional element of vagueness or speculation. Such an element is necessarily present in the administration of any bail system, in the imposition of alternatively available sentences, in the administration of a parole system, or in any other procedure in which discretionary authority for differing criminal dispositions is vested in a court or an administrative body.

There is another aspect. The children who come before Family Court fall largely into two categories—those who are no longer subject to the guidance or effective control of their parents or guardians, and those who have no custodians at all. Indeed this is what has contributed to their difficulties. In this circumstance to a very real extent Family Court must exercise a substitute parental control for which there can be no particularized criteria.

We add that we do not find significant the statistics cited by respondent for the proposition that in New York City in the judicial year 1972-1973 a larger percentage of youngsters charged in delinquency proceedings were held in pretrial detention than were ultimately placed in training schools. Entirely without reference to the fact that these statistics do not relate to the same cases, it must be apparent that there is a vastly different body of relevant data on which to make an informed determination as to the desirability of placement after the dispositional hearing. It should surprise no one that caution and concern for both the juvenile and society may indicate the more conservative decision to detain at the very outset, whereas the later development of very much more relevant information may prove that while a finding of delinquency was warranted, placement would not be indicated.

This case draws attention to what appears to be a growing tragedy—the thus far elusive and largely unmanageable problem of the neglected and delinquent child in our society. Most important—intelligent, effective and compassionate means must be found to assist children that are not subject to parental guidance or control, or whose custodians are ineffectual, through the temptations and turbulence of adolescence. In this aspect the children are the victims. On the other hand, if they are victims it must also be acknowledged that they are the perpetrators—of homicides, robberies, burglaries and rapes which threaten to make the modern city an imprisoning fortress for the old, the weak and the timid. Probable cause was found here, for instance, to conclude that this youth had engaged in a mugging which led to the death by strangulation of a pedestrian on the streets of New York.

Our Legislature confronted the necessity to reconcile the legitimate interest of youth in their liberty both with their entitlement to protection and guidance in their growing years and with the interest of society in its own protection. We cannot say that the constitutional rights of relator were infringed when the means chosen for the achievement of that objective was the adoption of subdivision (b) of section 739.

For the reasons discussed, we conclude that the provisions for pretrial detention of a youth charged as a juvenile delinquent found in subdivision (b) of section 739 do not offend either the equal protection or the due process constitutional mandates. Accordingly, the judgment of the Supreme Court should be reversed, and the petition for a writ of habeas corpus dismissed.

Fuchsberg, J. (concurring in result).

I do not take issue with the fact that there are aspects of the criminal justice system in relation to which children may be, and are presently, treated differently from adults without any violation of equal protection principles. But the statute before us, I respectfully suggest, violates by its broad sanction of preventive detention basic due process standards applicable to both children and adults (Matter of Winship, 397 US 358; Matter of Gault, 387 US 1). Though the statute specifies that a child may be detained upon a finding that there is a "serious risk” that he may commit an act which would be a crime for an adult before the charges which brought him into court can be adjudicated, it offers no indication whatsoever as to what criteria are to be used in determining when a child poses such a risk.

The absence of such criteria is no accident. As commentators have pointed out and reputable studies have shown, we presently possess no legal or sociological crystal ball with which to make accurate predictions of future crimes (see Note, Preventive Detention: An Empirical Analysis, 6 Harv Civ Rights Civ Lib L Rev 289; Hearings on Preventive Detention Before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 91st Cong 2d Session [1970]; Family Court Act Legislative Report, McKinney’s Session Laws of NY, 1962, p 3428; Judicial Conference of the State of New York, 19th Annual Report, p 341; Tribe, An Ounce of Detention: Preventive Justice in the World of John Mitchell, 56 Va L Rev 371; President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: Juvenile Delinquency and Youth Crime [1967], p 37).

The result, as indeed these studies demonstrate, is that a great many juveniles are detained only to be released when their cases are finally adjudicated, thereby demonstrating that they were never in need of detention, while other juveniles somehow slip through the net of detention and then commit further crimes (see, particularly, Judicial Conference of the State of New York, 19th Annual Report, p 341). Choices among juveniles as to who is a risk and who is not are thus essentially random and inexplicable in terms of any articulated and validated behavorial criteria. Such a procedure is inherently arbitrary and violative of due process (see Rinaldi v Yeager, 384 US 305; Carrington v Rash, 380 US 89; Papachristou v City of Jacksonville, 405 US 156).

It is no answer to suggest that, apart from its purpose to protect society, otherwise arbitrary detention may be allowed because it has a protective or rehabilitative use for the child himself. The language of the statute makes no mention of a purpose to protect the child, and the Judge who applies it need not articulate any such rationale, as the majority correctly notes (opn, p 687; compare California Welfare and Institutions Code, § 6305; see Matter of William M., 3 Cal 3d 16, 26, n 17). Moreover, while the Legislature may have chosen overbroad terms in which to express its desire to protect society, the history of the statute makes very clear that it was not intended to be used for the protection of children themselves. That history indicates a profound legislative concern that detention is bad for children, not good for them, and displays an intent to curb the de facto practice of unnecessarily detaining children who are not threats to society, rather than an intent to broaden that practice (Family Court Act Legislative Report, McKinney’s Session Laws of NY, 1962, pp 3428, 3438). And, as the United States Supreme Court has recently pointed out in a juvenile context: "Nor does the fact 'that the purpose of the commitment is rehabilitative and not punitive * * * change its nature * * * Regardless of the purposes for which the incarceration is imposed, the fact remains that it is incarceration. The rehabilitative goals of the system are admirable, but they do not change the drastic nature of the action taken.’ * * * Fain v. Duff, 488 F. 2d, at 225.” (Breed v Jones, 421 US 519, 530, n 12; see, also, the opn of Mr. Justice Brownstein at nisi prius, 80 Misc 2d 730, 733.)

The fact that the period of detention in most cases may be relatively short does not suffice to remove the objection that there should have been no detention at all. Section 747 of the Family Court Act permits detention of a juvenile for three days without a hearing. When the juvenile is accused of acts which, if performed by an adult, would be classified as A, B, or C felonies, longer detention is authorized before adjudication must take place and at least one adjournment may be had (Family Ct Act, § 748). It is true that this court’s opinion in People ex rel. Guggenheim v Mucci (32 NY2d 307) read into these statutes a requirement that, if detention is to last beyond three days, a probable cause hearing must be held. Detention, however, may be continued if, after a showing of probable, cause to believe that the juvenile did commit the act of which he is accused, the court feels that he is a "serious risk”. That is precisely what happened in the case before us. The Guggenheim decision, while laudable, thus provides no solution to the dilemma of how to predict which children present such risks and which ones do not.

It should be noted that the due process strictures on detention of accused persons, adult or juvenile, prior to adjudication are not a bar to proper dispositions in cases where genuine evidence of risk, capable of objective ascertainment, is presented. Thus, our courts have long had the power to consider whether mental or emotional illness of a degree sufficient to make future crimes probable is suggested by all of the circumstances and to obtain the needed medical and psychiatric data on which to base a disposition (see A Program for Prison Reform Final Report, Annual Chief Justice Earl Warren Conference on Advocacy, June, 1972, p 13; Note, Preventive Detention Before Trial, 79 Harv L Rev 1489, 1504; cf. Fhagen v Miller, 29 NY2d 348, cert den 409 US 845; Matter of James, 22 NY2d 545). Detention in such cases does not depend upon the statute in issue here.

It is detention without such objective and demonstrable criteria which is forbidden by constitutional mandates. Since the statute before us (Family Ct Act, § 739, subd [b]) contains no such criteria, it must be held unconstitutional. Of course, I share the majority’s deep concern about the escalating incidence of violent crime, regrettably committed by children as well as adults. But suspension of the right not to be punished before one is found guilty is not a permissible solution, if it is any solution at all.

Accordingly, I would modify the judgment to the extent of dismissing the petition as moot. If it were not moot, I would have voted to affirm.

Cooke, J. (concurring).

I concur in the result solely on the ground that the detention of one charged as a juvenile delinquent is constitutionally justified as a means of protecting the child.

Chief Judge Breitel and Judges Jasen, Gabrielli and Wachtler concur with Judge Jones; Judges Fuchsberg and Cooke concur in result in separate concurring opinions.

Judgment reversed, without costs, and the petition dismissed. 
      
      . At the time involved in this proceeding the provision was subdivision (b) of section 739 of the Family Court Act. By chapter 837 of the Laws of 1975 it was renumbered as section 739 (subd [a], par [ii]), effective September 1, 1975. In this opinion the reference will be to its former number, subdivision (b) of section 739.
     
      
      . In the procedural posture in which this appeal reaches us no question is presented as to the necessity for or the sufficiency of the record to support the finding of the Family Court Judge that unless this young man "is detained * * * there is a serious risk that he may before the return date do an act which if committed by an adult would constitute a crime.” (Family Ct Act, § 739, subd [b].) Accordingly, we intimate no view as to what, if any, are the statutory requirements in these respects.
     