-: 13411, Commonwealth vs. Dante S. Padilla.
Bidd: Okay. Attorney Briggs.
Briggs: Good morning.
May it please the court, Catherine Briggs
on behalf of the Department of Youth Services.
This case addresses youth under 18
who are charged with murder.
The questions reported by the Superior Court
in the amicus solicitation from this court
concern only youth under 18, and do not address
the status of youth charged with murder
who turn 18 during the pendency of their case.
This court should find in accordance
with the last paragraph of general laws,
chapter 119, section 68, that DYS can have
youth under 18 who have been charged
with murder and committed to the custody of the sheriff.
The courtesy hold process between the county sheriffs
and DYS ensures that Massachusetts remains
in compliance with federal law - two federal laws.
The Juvenile Justice and Delinquency Prevention Act,
otherwise known as the JJDPA,
and the Prison Rape Elimination Act,
commonly referred to as PREA.
This court should also find that the last paragraph
of section 68 is constitutional.
The language in section 68 (unintelligible),
and there is nothing unconstitutional
about placing a youth in the custody
of the sheriff versus DYS.
The statute easily survives the facial challenge
posed by Mr. Padilla.
There is no statutory prohibition
to the sheriff's request that DYS hold youth
under 18 charged with murder as a courtesy
until they turn 18.
As custodian, the sheriff has the authority to
determine where youths charged with murder are placed.
Budd: Can you just to do with this
particular defendant - he was a juvenile,
then turned 18 while he was in DYS custody?
Briggs: That is correct.
The procedural history of the case as it will,
Mr. Padilla was alleged to have committed murder-
Budd: Yeah, no, I understand.
So, he's in the custody of the sheriff,
but sitting with DYS, and then he turns 18
and wants to stay with DYS.
-: Correct. And asking that that the court order
that he remain with DYS and what that involves is
basically they asked the court to change the MID
to say in the custody of DYS versus the sheriff.
But the statute-
Kafker: But the the context of the case
is before he turns 18.
Briggs: That's correct.
-: So, the only person raising the after 18 issue
is the amicus brief of CPCS, right?
Briggs: Correct.
-: The issue before us is just the time period
before he turns 18.
Briggs: That's correct.
Gaziano: Wouldn't we have an issue
if we didn't have the courtesy hold?
So we don't really have an issue
'cause of the courtesy hold?
Briggs: Essentially, your Honor, yes.
Gaziano: I think you all agree, frankly.
(laughs)
-: There's not much space between the parties.
I think this third question about the constitutionality
of the placement in general is what
thrust the case forward.
And, and in that respect, there is parties-
-: It's interesting, I grant that,
but not necessary 'cause of the courtesy hold.
My words, not yours.
-: Right. Correct.
I mean, yes, the constitutional- there's not
much light between the parties.
And with respect to the constitutional issue
as addressed to youth under 18, no,
the courtesy hold process sort
of solves this issue that has arisen.
Gaziano: And it solves the statutory issues
that are before us on the two federal statutes.
Briggs: Correct. Correct.
And the courtesy hold process has been
in place for a very long time, since 1996
when the the law was changed.
And when there was a period of time
that's reflected in the record,
in the affidavit provided by DYS,
where there was a little bit of a change in
where they were held
and it involved a lot of stakeholders.
I mean, this was not a decision that was sort of
taken lightly by the parties.
Gaziano: The only thing that really is out there
that isn't actually before us
is what happens from 18 to 21,
which is raised by (unintelligible), right?
Briggs: And, I mean, the constitutional question
was reported and DYS's position
on the constitutional question is that
it is constitutional
and that you should answer it.
In his brief, Mr. Padilla suggested
this court should not answer
the question of the constitutional question
because it's too broad and
devoid of application to particular facts.
To the contrary, the last paragraph
of section 68 is very narrow.
It applies only to a small subset of youth:
those charged with murder.
And it does only one thing.
It directs the Superior Court
to (cut) the custody of the sheriff.
Gaziano: It's like four to five people, this...
Briggs: That's correct.
It's a very small number,
and for practical purposes, yes.
This court must answer the constitutional question
because despite the ruling in Nicholas Taylor
by this court last year,
issues still arrive surrounding the status
of youth under 18 charged with murder.
Much of Mr. Padilla's argument against
the constitutionality of the provision
assumes that the plain language
of the statute requires youth charged
with murder who are under 18 to be housed
in adult correctional facilities.
This assumption is incorrect.
The fact that youth under 18 charged with murder
are ordered into the custody of the sheriff
does not mean that they will physically be placed
in an adult jail.
Youth have never been placed
in adult jails under this law.
In addition to assuming-
Kafker: Normally custody's...
Normally physical and legal custody...
So this is an exception, right?
It is an unusual context where we have
most of the physical custody being with DYS,
even though the legal custody is always
with the sheriff, right?
Briggs: That's correct.
And the sheriffs do retain some responsibility
to the youth who are placed with us,
and they do do all the transportation
and security when it comes to court dates,
medical appointments, of that sort.
And there is a formal process,
the sheriffs do send us a letter.
They say in the letter only until they turn 18.
And so ostensibly, they still retain this power
to pull those youth back should they
have appropriate facilities for them.
In addition to assuming that the statute's
plain language means that this cohort of youth
will necessarily end up in adult facilities,
Mr. Padilla also speculates that these youth
will end up in adult jail because
the courtesy hold agreements might go away
and the federal statutes might not be reauthorized.
Facial challenges cannot survive based on
speculation unsupported by any evidence.
Mr. Padilla does concede as this court has
recognized that the courtesy hold process comports
with constitutional protections and takes issue
only with the language of that statute
which places these youth in the custody of the sheriff.
Kafker: You're not asking us to declare
that this would be constitutional,
absent courtesy holds right?
You're not asking us to go any further
than we have to, right?
Gaziano: (unintelligible) ...federal statute,
and you don't wanna do that.
Briggs: Correct. These youth-
Kafker: And the other side doesn't really want us
to say that you're forced to do something
that they don't want to have happen either.
So this is kind of an abstract,
but not real world issue.
Briggs: Correct.
Yes.
And I think it's important to look at
the language of the statute, which, again,
the statute only asks, says custody, right?
Then the custody of the sheriff versus DYS,
it asks nothing more.
So, similarly, we would ask this court to
also simply just find the language of the statute
constitutional in this case.
Gaziano: We could just lecture you and say
'keep doing what you're doing.'
Kafker: You're doing a great job.
(laughs)
Briggs: Yes.
The statute easily survives a rational basis test,
defeating any argument that
it violates substantive due process or equal protection.
In deciding that the sheriff would be
the appropriate custodian of youth charged with murder,
for public safety reasons,
the same way that they decided that
the Superior Court, rather than the Juvenile Court,
was the more appropriate place to hear
the youth's murder cases.
This court upheld chapter 119, section 74
in the Fernandez case,
choosing not to question the legislature's judgment.
Furthermore, Padilla's argument that
the statute violates this cohort of youth's
rights to be free from cruel and unusual punishment
relies again on the assumption that the statute
somehow mandates these youth to be placed
in adult facilities.
That is simply not true.
Even if the courtesy hold agreements didn't exist,
these youth would not necessarily be held
alongside adults.
The constant challenges to the statutes fail
when based on assumptions about
how it operates in practice.
Lowy: Well, we don't know whether the sheriffs
have separate facilities in every county,
you know.
Briggs: They don't.
That's why sort of the process exists, right?
Lowy: So as far as what would happen-
Briggs: Right, I couldn't speak to
what would happen.
I can only speak to the fact that when,
in a situation where the courts are being asked
to hold these youth beyond the age of 18,
that's when we run into issues of violating
federal law and even- (cut)
-: Brief, sort of, what else exists
in the Massachusetts statutes,
which do sort of recognize that
there should be a separation
between adults and juveniles in terms
of post sentencing and post adjudication.
This court should answer all three
reported questions, 'no,'
confirming that the last paragraph
of section 68 is constitutional.
This court should also confirm that the last paragraph
of section 68 does not require juveniles
charged with murder to be housed in
adult detention facilities,
and that the courtesy hold process is lawful.
If there are no further questions,
the department will rest on its brief.
Budd: Thank you.
Okay, Attorney Jellison.
-: I think we're still morning.
Good morning, Chief Justice Budd
and Associate Justices,
and may it please the court.
I think I've heard the word abstract about
three times at this point,
and when I was briefing this case
the justiciability issue was right up front for me.
Because of the courtesy holds, the harm that
this statute would otherwise direct isn't happening.
And I don't think that that gives the court
a record to decide this case.
In some ways, I think it would be an advisory opinion,
and I don't think that I could honestly argue
that the court should decide this case.
Should the court go to the constitutional issue,
this paragraph does not meet the rational basis test,
either under due process or equal protection,
and it would present a conditions of confinement issue.
And I think we-
Gaziano: Think because technically
they're held by the sheriff?
Jellison: Yeah, well, so this is... if I were to-
Gaziano: I get it.
'Cause then...
Your first argument's very well-stated,
but I don't know how it would be a constitutional issue
in abstract because what's happening isn't
what you say the evil to be cured is.
Jellison: Right. Right, and-
Gaziano: If there were no courtesy holds, yeah.
Jellison: Right.
So to the extent that that Attorney Briggs mentioned,
I'm not arguing that courtesy holds are illegal
in any way, shape or form.
Gaziano: I would hope not.
Jellison: Yeah, just to be clear, just to be clear,
I'm not arguing that they're illegal,
but to the extent
that this court has interpreted statutes
from this package, from this 1996 package
as requiring children to be treated
as adults for all purposes;
To me, and Justice Kafker mentioned,
custody usually means physical custody too.
I really believe this statute does direct children
to be held in adult jails.
And I'm glad that there has been this workaround,
but to the extent that that is what this statute
says on its face, I really do think
we run into a constitutional problem.
And some of that comes from the fact
that there really is no legitimate reason to hold
an eighth or ninth grader in.
And, it's a rare law that doesn't
meet rational basis, but this package of laws
was really passed in reaction to
the super predator myth,
which in many ways was a racist lie.
And that we've treated children as adults in
some of these other contexts for punishment,
obviously pretrial detention can't be punishment,
for sentencing.
I think we all understand that the legislature
thought that the sentence of DYS 421
for a murder was inappropriate.
That seems that's consistent with public safety.
If we're looking at whether or not the children
are held pretrial, they're certainly
being held- (cut) that the court is,
and you look at judicial economy,
these cases are tried in Superior Court.
Yes, Superior Court are experts at these cases.
Adult jails are not experts at holding children.
So, there really is no legitimate government reason
to put a child-
Kafker: But doesn't all that not only...
but it doesn't suggest that the the word 'custody'
can't be shared or can't be delegated somehow.
Right?
Jellison: Right.
-: Or that you can't have a difference between
physical and legal custody, which,
none of which we have to decide,
'cause it's...
Yeah, sorry.
Jellison: No, no, I, I agree with you.
I guess this court could interpret the statute-
Fairly, from the intent of this
package of legislation, the legislature
hasn't acted to change anything that's going on.
Certainly, and I don't think a legislature today
would pass a law-
Our legislature today would pass a law saying
that you have to put a 14 year old in adult custody.
But the way that the law reads, and
it would create great harm to children
and serve no purpose.
So it really represents one of those
rare times when the legislature did something
in reaction to fear and things that were
going on at the time that really didn't have
a rational basis.
So I guess to the extent that the court wants
to decide the issue,
I would ask that they not constitutional
to the extent that this is an abstract question
because it's not happening.
I would ask that you hold that it's not just disable.
And to the extent that there was an amicus
announcement about section 66, I address it.
I noticed, I don't think I put this
in my brief, so this is why I wanted to say it,
that section 66 uses the word 'child'
and the last paragraph of section 68
uses the word 'person.'
And these statutes were changed at the
same time in 1996.
And it says to me, and along with the purpose
of the legislature to treat the set
of children as adults, that 66 just simply
does not apply to this set of children.
So I just wanted to note the language that's
in the statutes.
Gaziano: But isn't 66 is the broad statute
and 68 focuses on-
Jellison: Is the specific.
Gaziano: Yeah, on murder defendants.
Jellison: Yes.
If there are no other questions,
I would rest up the issues.