WEBVTT
1
00:00:01.260 --> 00:00:04.653
13411, Commonwealth vs. Dante S. Padilla.
2
00:00:05.580 --> 00:00:07.740
Okay. Attorney Briggs.
3
00:00:07.740 --> 00:00:08.760
Good morning.
4
00:00:08.760 --> 00:00:10.500
May it please the court, Catherine Briggs
5
00:00:10.500 --> 00:00:13.230
on behalf of the Department of Youth Services.
6
00:00:13.230 --> 00:00:17.190
This case addresses youth under 18
7
00:00:17.190 --> 00:00:19.050
who are charged with murder.
8
00:00:19.050 --> 00:00:21.930
The questions reported by the Superior Court
9
00:00:21.930 --> 00:00:24.330
in the amicus solicitation from this court
10
00:00:24.330 --> 00:00:27.810
concern only youth under 18, and do not address
11
00:00:27.810 --> 00:00:29.970
the status of youth charged with murder
12
00:00:29.970 --> 00:00:34.110
who turn 18 during the pendency of their case.
13
00:00:34.110 --> 00:00:36.120
This court should find in accordance
14
00:00:36.120 --> 00:00:38.010
with the last paragraph of general laws,
15
00:00:38.010 --> 00:00:41.650
chapter 119, section 68, that DYS can have
16
00:00:43.170 --> 00:00:45.390
youth under 18 who have been charged
17
00:00:45.390 --> 00:00:49.050
with murder and committed to the custody of the sheriff.
18
00:00:49.050 --> 00:00:52.110
The courtesy hold process between the county sheriffs
19
00:00:52.110 --> 00:00:56.700
and DYS ensures that Massachusetts remains
20
00:00:56.700 --> 00:01:00.480
in compliance with federal law - two federal laws.
21
00:01:00.480 --> 00:01:02.910
The Juvenile Justice and Delinquency Prevention Act,
22
00:01:02.910 --> 00:01:05.460
otherwise known as the JJDPA,
23
00:01:05.460 --> 00:01:07.560
and the Prison Rape Elimination Act,
24
00:01:07.560 --> 00:01:10.170
commonly referred to as PREA.
25
00:01:10.170 --> 00:01:13.020
This court should also find that the last paragraph
26
00:01:13.020 --> 00:01:17.550
of section 68 is constitutional.
27
00:01:17.550 --> 00:01:19.740
The language in section 68 (unintelligible),
28
00:01:19.740 --> 00:01:22.590
and there is nothing unconstitutional
29
00:01:22.590 --> 00:01:24.420
about placing a youth in the custody
30
00:01:24.420 --> 00:01:26.730
of the sheriff versus DYS.
31
00:01:26.730 --> 00:01:29.430
The statute easily survives the facial challenge
32
00:01:29.430 --> 00:01:30.903
posed by Mr. Padilla.
33
00:01:32.310 --> 00:01:34.860
There is no statutory prohibition
34
00:01:34.860 --> 00:01:38.970
to the sheriff's request that DYS hold youth
35
00:01:38.970 --> 00:01:41.970
under 18 charged with murder as a courtesy
36
00:01:41.970 --> 00:01:44.160
until they turn 18.
37
00:01:44.160 --> 00:01:48.300
As custodian, the sheriff has the authority to
38
00:01:48.300 --> 00:01:52.530
determine where youths charged with murder are placed.
39
00:01:52.530 --> 00:01:53.850
Can you just to do with this
40
00:01:53.850 --> 00:01:58.140
particular defendant - he was a juvenile,
41
00:01:58.140 --> 00:02:01.410
then turned 18 while he was in DYS custody?
42
00:02:01.410 --> 00:02:03.240
That is correct.
43
00:02:03.240 --> 00:02:05.520
The procedural history of the case as it will,
44
00:02:05.520 --> 00:02:09.540
Mr. Padilla was alleged to have committed murder-
45
00:02:09.540 --> 00:02:10.590
Yeah, no, I understand.
46
00:02:10.590 --> 00:02:12.990
So, he's in the custody of the sheriff,
47
00:02:12.990 --> 00:02:16.950
but sitting with DYS, and then he turns 18
48
00:02:16.950 --> 00:02:20.340
and wants to stay with DYS.
49
00:02:20.340 --> 00:02:22.950
Correct. And asking that that the court order
50
00:02:22.950 --> 00:02:26.220
that he remain with DYS and what that involves is
51
00:02:26.220 --> 00:02:28.890
basically they asked the court to change the MID
52
00:02:28.890 --> 00:02:31.950
to say in the custody of DYS versus the sheriff.
53
00:02:31.950 --> 00:02:32.963
But the statute-
54
00:02:32.963 --> 00:02:34.860
But the the context of the case
55
00:02:34.860 --> 00:02:36.600
is before he turns 18.
56
00:02:36.600 --> 00:02:37.433
That's correct.
57
00:02:37.433 --> 00:02:41.280
So, the only person raising the after 18 issue
58
00:02:41.280 --> 00:02:43.942
is the amicus brief of CPCS, right?
59
00:02:43.942 --> 00:02:45.090
Correct.
60
00:02:45.090 --> 00:02:48.030
The issue before us is just the time period
61
00:02:48.030 --> 00:02:48.930
before he turns 18.
62
00:02:48.930 --> 00:02:49.763
That's correct.
63
00:02:49.763 --> 00:02:50.850
Wouldn't we have an issue
64
00:02:50.850 --> 00:02:52.800
if we didn't have the courtesy hold?
65
00:02:52.800 --> 00:02:53.940
So we don't really have an issue
66
00:02:53.940 --> 00:02:55.383
'cause of the courtesy hold?
67
00:02:56.580 --> 00:02:57.870
Essentially, your Honor, yes.
68
00:02:57.870 --> 00:03:00.686
I think you all agree, frankly.
69
00:03:00.686 --> 00:03:01.519
(laughs)
70
00:03:01.519 --> 00:03:04.620
There's not much space between the parties.
71
00:03:04.620 --> 00:03:07.830
I think this third question about the constitutionality
72
00:03:07.830 --> 00:03:09.840
of the placement in general is what
73
00:03:09.840 --> 00:03:12.660
thrust the case forward.
74
00:03:12.660 --> 00:03:15.930
And, and in that respect, there is parties-
75
00:03:15.930 --> 00:03:17.940
It's interesting, I grant that,
76
00:03:17.940 --> 00:03:21.003
but not necessary 'cause of the courtesy hold.
77
00:03:23.250 --> 00:03:24.090
My words, not yours.
78
00:03:24.090 --> 00:03:25.050
Right. Correct.
79
00:03:25.050 --> 00:03:27.720
I mean, yes, the constitutional- there's not
80
00:03:27.720 --> 00:03:28.800
much light between the parties.
81
00:03:28.800 --> 00:03:30.540
And with respect to the constitutional issue
82
00:03:30.540 --> 00:03:32.670
as addressed to youth under 18, no,
83
00:03:32.670 --> 00:03:34.110
the courtesy hold process sort
84
00:03:34.110 --> 00:03:37.200
of solves this issue that has arisen.
85
00:03:37.200 --> 00:03:38.577
And it solves the statutory issues
86
00:03:38.577 --> 00:03:41.670
that are before us on the two federal statutes.
87
00:03:41.670 --> 00:03:42.896
Correct. Correct.
88
00:03:42.896 --> 00:03:44.970
And the courtesy hold process has been
89
00:03:44.970 --> 00:03:48.660
in place for a very long time, since 1996
90
00:03:48.660 --> 00:03:50.790
when the the law was changed.
91
00:03:50.790 --> 00:03:53.650
And when there was a period of time
92
00:03:54.510 --> 00:03:55.860
that's reflected in the record,
93
00:03:55.860 --> 00:03:57.660
in the affidavit provided by DYS,
94
00:03:57.660 --> 00:04:01.500
where there was a little bit of a change in
95
00:04:01.500 --> 00:04:02.333
where they were held
96
00:04:02.333 --> 00:04:03.750
and it involved a lot of stakeholders.
97
00:04:03.750 --> 00:04:05.640
I mean, this was not a decision that was sort of
98
00:04:05.640 --> 00:04:06.553
taken lightly by the parties.
99
00:04:06.553 --> 00:04:09.750
The only thing that really is out there
100
00:04:09.750 --> 00:04:11.580
that isn't actually before us
101
00:04:11.580 --> 00:04:14.760
is what happens from 18 to 21,
102
00:04:14.760 --> 00:04:17.340
which is raised by (unintelligible), right?
103
00:04:17.340 --> 00:04:19.080
And, I mean, the constitutional question
104
00:04:19.080 --> 00:04:21.570
was reported and DYS's position
105
00:04:21.570 --> 00:04:23.790
on the constitutional question is that
106
00:04:23.790 --> 00:04:24.747
it is constitutional
107
00:04:24.747 --> 00:04:26.700
and that you should answer it.
108
00:04:26.700 --> 00:04:28.560
In his brief, Mr. Padilla suggested
109
00:04:28.560 --> 00:04:29.820
this court should not answer
110
00:04:29.820 --> 00:04:31.970
the question of the constitutional question
111
00:04:33.960 --> 00:04:35.015
because it's too broad and
112
00:04:35.015 --> 00:04:38.640
devoid of application to particular facts.
113
00:04:38.640 --> 00:04:40.440
To the contrary, the last paragraph
114
00:04:40.440 --> 00:04:42.450
of section 68 is very narrow.
115
00:04:42.450 --> 00:04:44.850
It applies only to a small subset of youth:
116
00:04:44.850 --> 00:04:46.150
those charged with murder.
117
00:04:47.820 --> 00:04:49.470
And it does only one thing.
118
00:04:49.470 --> 00:04:51.000
It directs the Superior Court
119
00:04:51.000 --> 00:04:52.740
to (cut) the custody of the sheriff.
120
00:04:52.740 --> 00:04:55.530
It's like four to five people, this...
121
00:04:55.530 --> 00:04:56.363
That's correct.
122
00:04:56.363 --> 00:04:57.420
It's a very small number,
123
00:04:57.420 --> 00:04:59.823
and for practical purposes, yes.
124
00:05:01.350 --> 00:05:03.720
This court must answer the constitutional question
125
00:05:03.720 --> 00:05:05.820
because despite the ruling in Nicholas Taylor
126
00:05:05.820 --> 00:05:07.320
by this court last year,
127
00:05:07.320 --> 00:05:09.600
issues still arrive surrounding the status
128
00:05:09.600 --> 00:05:12.330
of youth under 18 charged with murder.
129
00:05:12.330 --> 00:05:14.670
Much of Mr. Padilla's argument against
130
00:05:14.670 --> 00:05:17.070
the constitutionality of the provision
131
00:05:17.070 --> 00:05:18.480
assumes that the plain language
132
00:05:18.480 --> 00:05:20.640
of the statute requires youth charged
133
00:05:20.640 --> 00:05:22.800
with murder who are under 18 to be housed
134
00:05:22.800 --> 00:05:24.750
in adult correctional facilities.
135
00:05:24.750 --> 00:05:29.100
This assumption is incorrect.
136
00:05:29.100 --> 00:05:31.530
The fact that youth under 18 charged with murder
137
00:05:31.530 --> 00:05:33.330
are ordered into the custody of the sheriff
138
00:05:33.330 --> 00:05:35.340
does not mean that they will physically be placed
139
00:05:35.340 --> 00:05:36.480
in an adult jail.
140
00:05:36.480 --> 00:05:37.770
Youth have never been placed
141
00:05:37.770 --> 00:05:40.110
in adult jails under this law.
142
00:05:40.110 --> 00:05:40.943
In addition to assuming-
143
00:05:40.943 --> 00:05:42.520
Normally custody's...
144
00:05:44.340 --> 00:05:47.340
Normally physical and legal custody...
145
00:05:47.340 --> 00:05:49.653
So this is an exception, right?
146
00:05:50.820 --> 00:05:54.240
It is an unusual context where we have
147
00:05:54.240 --> 00:05:58.567
most of the physical custody being with DYS,
148
00:05:59.490 --> 00:06:02.460
even though the legal custody is always
149
00:06:02.460 --> 00:06:03.900
with the sheriff, right?
150
00:06:03.900 --> 00:06:04.733
That's correct.
151
00:06:04.733 --> 00:06:07.410
And the sheriffs do retain some responsibility
152
00:06:07.410 --> 00:06:09.900
to the youth who are placed with us,
153
00:06:09.900 --> 00:06:11.610
and they do do all the transportation
154
00:06:11.610 --> 00:06:13.950
and security when it comes to court dates,
155
00:06:13.950 --> 00:06:16.740
medical appointments, of that sort.
156
00:06:16.740 --> 00:06:19.650
And there is a formal process,
157
00:06:19.650 --> 00:06:21.600
the sheriffs do send us a letter.
158
00:06:21.600 --> 00:06:24.060
They say in the letter only until they turn 18.
159
00:06:24.060 --> 00:06:26.940
And so ostensibly, they still retain this power
160
00:06:26.940 --> 00:06:30.000
to pull those youth back should they
161
00:06:30.000 --> 00:06:32.343
have appropriate facilities for them.
162
00:06:33.960 --> 00:06:35.850
In addition to assuming that the statute's
163
00:06:35.850 --> 00:06:38.250
plain language means that this cohort of youth
164
00:06:38.250 --> 00:06:41.460
will necessarily end up in adult facilities,
165
00:06:41.460 --> 00:06:43.860
Mr. Padilla also speculates that these youth
166
00:06:43.860 --> 00:06:45.240
will end up in adult jail because
167
00:06:45.240 --> 00:06:47.520
the courtesy hold agreements might go away
168
00:06:47.520 --> 00:06:50.970
and the federal statutes might not be reauthorized.
169
00:06:50.970 --> 00:06:53.460
Facial challenges cannot survive based on
170
00:06:53.460 --> 00:06:56.730
speculation unsupported by any evidence.
171
00:06:56.730 --> 00:06:58.680
Mr. Padilla does concede as this court has
172
00:06:58.680 --> 00:07:01.260
recognized that the courtesy hold process comports
173
00:07:01.260 --> 00:07:03.900
with constitutional protections and takes issue
174
00:07:03.900 --> 00:07:06.270
only with the language of that statute
175
00:07:06.270 --> 00:07:09.300
which places these youth in the custody of the sheriff.
176
00:07:09.300 --> 00:07:11.197
You're not asking us to declare
177
00:07:11.197 --> 00:07:13.380
that this would be constitutional,
178
00:07:13.380 --> 00:07:15.813
absent courtesy holds right?
179
00:07:19.590 --> 00:07:21.840
You're not asking us to go any further
180
00:07:21.840 --> 00:07:23.845
than we have to, right?
181
00:07:23.845 --> 00:07:24.678
(unintelligible) ...federal statute,
182
00:07:24.678 --> 00:07:26.310
and you don't wanna do that.
183
00:07:26.310 --> 00:07:29.123
Correct. These youth-
184
00:07:29.123 --> 00:07:32.020
And the other side doesn't really want us
185
00:07:33.902 --> 00:07:37.890
to say that you're forced to do something
186
00:07:37.890 --> 00:07:39.450
that they don't want to have happen either.
187
00:07:39.450 --> 00:07:42.690
So this is kind of an abstract,
188
00:07:42.690 --> 00:07:45.090
but not real world issue.
189
00:07:45.090 --> 00:07:46.040
Correct.
190
00:07:46.920 --> 00:07:47.753
Yes.
191
00:07:47.753 --> 00:07:49.440
And I think it's important to look at
192
00:07:49.440 --> 00:07:51.840
the language of the statute, which, again,
193
00:07:51.840 --> 00:07:54.180
the statute only asks, says custody, right?
194
00:07:54.180 --> 00:07:56.040
Then the custody of the sheriff versus DYS,
195
00:07:56.040 --> 00:07:56.873
it asks nothing more.
196
00:07:56.873 --> 00:07:59.490
So, similarly, we would ask this court to
197
00:07:59.490 --> 00:08:01.620
also simply just find the language of the statute
198
00:08:01.620 --> 00:08:02.580
constitutional in this case.
199
00:08:02.580 --> 00:08:04.230
We could just lecture you and say
200
00:08:04.230 --> 00:08:05.340
'keep doing what you're doing.'
201
00:08:05.340 --> 00:08:06.920
You're doing a great job.
202
00:08:06.920 --> 00:08:08.711
(laughs)
203
00:08:08.711 --> 00:08:10.770
Yes.
204
00:08:10.770 --> 00:08:13.353
The statute easily survives a rational basis test,
205
00:08:14.400 --> 00:08:15.480
defeating any argument that
206
00:08:15.480 --> 00:08:19.470
it violates substantive due process or equal protection.
207
00:08:19.470 --> 00:08:21.180
In deciding that the sheriff would be
208
00:08:21.180 --> 00:08:23.640
the appropriate custodian of youth charged with murder,
209
00:08:23.640 --> 00:08:25.080
for public safety reasons,
210
00:08:25.080 --> 00:08:26.430
the same way that they decided that
211
00:08:26.430 --> 00:08:29.190
the Superior Court, rather than the Juvenile Court,
212
00:08:29.190 --> 00:08:32.460
was the more appropriate place to hear
213
00:08:32.460 --> 00:08:33.873
the youth's murder cases.
214
00:08:34.710 --> 00:08:37.620
This court upheld chapter 119, section 74
215
00:08:37.620 --> 00:08:38.790
in the Fernandez case,
216
00:08:38.790 --> 00:08:41.733
choosing not to question the legislature's judgment.
217
00:08:42.600 --> 00:08:44.550
Furthermore, Padilla's argument that
218
00:08:44.550 --> 00:08:47.117
the statute violates this cohort of youth's
219
00:08:47.117 --> 00:08:51.060
rights to be free from cruel and unusual punishment
220
00:08:51.060 --> 00:08:53.670
relies again on the assumption that the statute
221
00:08:53.670 --> 00:08:55.740
somehow mandates these youth to be placed
222
00:08:55.740 --> 00:08:57.000
in adult facilities.
223
00:08:57.000 --> 00:08:58.860
That is simply not true.
224
00:08:58.860 --> 00:09:01.560
Even if the courtesy hold agreements didn't exist,
225
00:09:01.560 --> 00:09:05.086
these youth would not necessarily be held
226
00:09:05.086 --> 00:09:06.990
alongside adults.
227
00:09:06.990 --> 00:09:09.540
The constant challenges to the statutes fail
228
00:09:09.540 --> 00:09:11.040
when based on assumptions about
229
00:09:11.040 --> 00:09:13.110
how it operates in practice.
230
00:09:13.110 --> 00:09:14.610
Well, we don't know whether the sheriffs
231
00:09:14.610 --> 00:09:17.130
have separate facilities in every county,
232
00:09:17.130 --> 00:09:18.870
you know.
233
00:09:18.870 --> 00:09:19.703
They don't.
234
00:09:19.703 --> 00:09:22.232
That's why sort of the process exists, right?
235
00:09:22.232 --> 00:09:23.790
So as far as what would happen-
236
00:09:23.790 --> 00:09:25.350
Right, I couldn't speak to
237
00:09:25.350 --> 00:09:26.430
what would happen.
238
00:09:26.430 --> 00:09:28.140
I can only speak to the fact that when,
239
00:09:28.140 --> 00:09:30.660
in a situation where the courts are being asked
240
00:09:30.660 --> 00:09:33.210
to hold these youth beyond the age of 18,
241
00:09:33.210 --> 00:09:37.680
that's when we run into issues of violating
242
00:09:37.680 --> 00:09:39.630
federal law and even- (cut)
243
00:09:39.630 --> 00:09:41.340
Brief, sort of, what else exists
244
00:09:41.340 --> 00:09:42.780
in the Massachusetts statutes,
245
00:09:42.780 --> 00:09:44.190
which do sort of recognize that
246
00:09:44.190 --> 00:09:45.360
there should be a separation
247
00:09:45.360 --> 00:09:47.250
between adults and juveniles in terms
248
00:09:47.250 --> 00:09:49.983
of post sentencing and post adjudication.
249
00:09:51.030 --> 00:09:52.560
This court should answer all three
250
00:09:52.560 --> 00:09:54.030
reported questions, 'no,'
251
00:09:54.030 --> 00:09:55.590
confirming that the last paragraph
252
00:09:55.590 --> 00:09:57.900
of section 68 is constitutional.
253
00:09:57.900 --> 00:10:00.990
This court should also confirm that the last paragraph
254
00:10:00.990 --> 00:10:03.630
of section 68 does not require juveniles
255
00:10:03.630 --> 00:10:05.010
charged with murder to be housed in
256
00:10:05.010 --> 00:10:06.450
adult detention facilities,
257
00:10:06.450 --> 00:10:09.990
and that the courtesy hold process is lawful.
258
00:10:09.990 --> 00:10:11.291
If there are no further questions,
259
00:10:11.291 --> 00:10:13.191
the department will rest on its brief.
260
00:10:14.910 --> 00:10:15.860
Thank you.
261
00:10:17.490 --> 00:10:18.690
Okay, Attorney Jellison.
262
00:10:21.780 --> 00:10:23.100
I think we're still morning.
263
00:10:23.100 --> 00:10:24.180
Good morning, Chief Justice Budd
264
00:10:24.180 --> 00:10:25.140
and Associate Justices,
265
00:10:25.140 --> 00:10:26.553
and may it please the court.
266
00:10:28.470 --> 00:10:30.240
I think I've heard the word abstract about
267
00:10:30.240 --> 00:10:31.290
three times at this point,
268
00:10:31.290 --> 00:10:34.110
and when I was briefing this case
269
00:10:34.110 --> 00:10:37.113
the justiciability issue was right up front for me.
270
00:10:38.100 --> 00:10:41.040
Because of the courtesy holds, the harm that
271
00:10:41.040 --> 00:10:43.560
this statute would otherwise direct isn't happening.
272
00:10:43.560 --> 00:10:47.370
And I don't think that that gives the court
273
00:10:47.370 --> 00:10:49.290
a record to decide this case.
274
00:10:49.290 --> 00:10:52.320
In some ways, I think it would be an advisory opinion,
275
00:10:52.320 --> 00:10:55.290
and I don't think that I could honestly argue
276
00:10:55.290 --> 00:10:57.570
that the court should decide this case.
277
00:10:57.570 --> 00:11:02.223
Should the court go to the constitutional issue,
278
00:11:03.990 --> 00:11:06.630
this paragraph does not meet the rational basis test,
279
00:11:06.630 --> 00:11:08.940
either under due process or equal protection,
280
00:11:08.940 --> 00:11:12.933
and it would present a conditions of confinement issue.
281
00:11:14.104 --> 00:11:14.937
And I think we-
282
00:11:14.937 --> 00:11:16.110
Think because technically
283
00:11:16.110 --> 00:11:17.880
they're held by the sheriff?
284
00:11:17.880 --> 00:11:20.533
Yeah, well, so this is... if I were to-
285
00:11:20.533 --> 00:11:21.366
I get it.
286
00:11:21.366 --> 00:11:22.641
'Cause then...
287
00:11:22.641 --> 00:11:23.760
Your first argument's very well-stated,
288
00:11:23.760 --> 00:11:26.610
but I don't know how it would be a constitutional issue
289
00:11:26.610 --> 00:11:29.340
in abstract because what's happening isn't
290
00:11:29.340 --> 00:11:33.210
what you say the evil to be cured is.
291
00:11:33.210 --> 00:11:34.920
Right. Right, and-
292
00:11:34.920 --> 00:11:37.470
If there were no courtesy holds, yeah.
293
00:11:37.470 --> 00:11:38.640
Right.
294
00:11:38.640 --> 00:11:43.640
So to the extent that that Attorney Briggs mentioned,
295
00:11:44.580 --> 00:11:47.310
I'm not arguing that courtesy holds are illegal
296
00:11:47.310 --> 00:11:48.870
in any way, shape or form.
297
00:11:48.870 --> 00:11:49.703
I would hope not.
298
00:11:49.703 --> 00:11:52.050
Yeah, just to be clear, just to be clear,
299
00:11:52.050 --> 00:11:54.000
I'm not arguing that they're illegal,
300
00:11:54.000 --> 00:11:55.380
but to the extent
301
00:11:55.380 --> 00:11:57.030
that this court has interpreted statutes
302
00:11:57.030 --> 00:11:59.620
from this package, from this 1996 package
303
00:12:00.510 --> 00:12:02.610
as requiring children to be treated
304
00:12:02.610 --> 00:12:04.710
as adults for all purposes;
305
00:12:04.710 --> 00:12:07.770
To me, and Justice Kafker mentioned,
306
00:12:07.770 --> 00:12:11.070
custody usually means physical custody too.
307
00:12:11.070 --> 00:12:14.580
I really believe this statute does direct children
308
00:12:14.580 --> 00:12:15.600
to be held in adult jails.
309
00:12:15.600 --> 00:12:20.600
And I'm glad that there has been this workaround,
310
00:12:20.790 --> 00:12:23.250
but to the extent that that is what this statute
311
00:12:23.250 --> 00:12:25.680
says on its face, I really do think
312
00:12:25.680 --> 00:12:27.300
we run into a constitutional problem.
313
00:12:27.300 --> 00:12:28.560
And some of that comes from the fact
314
00:12:28.560 --> 00:12:31.950
that there really is no legitimate reason to hold
315
00:12:31.950 --> 00:12:34.560
an eighth or ninth grader in.
316
00:12:34.560 --> 00:12:37.800
And, it's a rare law that doesn't
317
00:12:37.800 --> 00:12:41.220
meet rational basis, but this package of laws
318
00:12:41.220 --> 00:12:43.200
was really passed in reaction to
319
00:12:43.200 --> 00:12:45.030
the super predator myth,
320
00:12:45.030 --> 00:12:47.163
which in many ways was a racist lie.
321
00:12:48.600 --> 00:12:52.620
And that we've treated children as adults in
322
00:12:52.620 --> 00:12:55.560
some of these other contexts for punishment,
323
00:12:55.560 --> 00:12:57.960
obviously pretrial detention can't be punishment,
324
00:12:57.960 --> 00:12:59.190
for sentencing.
325
00:12:59.190 --> 00:13:01.020
I think we all understand that the legislature
326
00:13:01.020 --> 00:13:03.330
thought that the sentence of DYS 421
327
00:13:03.330 --> 00:13:04.890
for a murder was inappropriate.
328
00:13:04.890 --> 00:13:07.890
That seems that's consistent with public safety.
329
00:13:07.890 --> 00:13:09.330
If we're looking at whether or not the children
330
00:13:09.330 --> 00:13:11.190
are held pretrial, they're certainly
331
00:13:11.190 --> 00:13:14.550
being held- (cut) that the court is,
332
00:13:14.550 --> 00:13:16.230
and you look at judicial economy,
333
00:13:16.230 --> 00:13:18.450
these cases are tried in Superior Court.
334
00:13:18.450 --> 00:13:21.450
Yes, Superior Court are experts at these cases.
335
00:13:21.450 --> 00:13:24.990
Adult jails are not experts at holding children.
336
00:13:24.990 --> 00:13:27.450
So, there really is no legitimate government reason
337
00:13:27.450 --> 00:13:28.500
to put a child-
338
00:13:28.500 --> 00:13:31.470
But doesn't all that not only...
339
00:13:31.470 --> 00:13:36.150
but it doesn't suggest that the the word 'custody'
340
00:13:36.150 --> 00:13:41.150
can't be shared or can't be delegated somehow.
341
00:13:44.490 --> 00:13:45.540
Right?
342
00:13:45.540 --> 00:13:46.380
Right.
343
00:13:46.380 --> 00:13:49.230
Or that you can't have a difference between
344
00:13:49.230 --> 00:13:50.934
physical and legal custody, which,
345
00:13:50.934 --> 00:13:54.420
none of which we have to decide,
346
00:13:54.420 --> 00:13:55.253
'cause it's...
347
00:13:56.820 --> 00:13:57.720
Yeah, sorry.
348
00:13:57.720 --> 00:13:59.291
No, no, I, I agree with you.
349
00:13:59.291 --> 00:14:02.403
I guess this court could interpret the statute-
350
00:14:04.500 --> 00:14:06.330
Fairly, from the intent of this
351
00:14:06.330 --> 00:14:11.010
package of legislation, the legislature
352
00:14:11.010 --> 00:14:13.770
hasn't acted to change anything that's going on.
353
00:14:13.770 --> 00:14:15.990
Certainly, and I don't think a legislature today
354
00:14:15.990 --> 00:14:17.070
would pass a law-
355
00:14:17.070 --> 00:14:18.870
Our legislature today would pass a law saying
356
00:14:18.870 --> 00:14:22.743
that you have to put a 14 year old in adult custody.
357
00:14:24.060 --> 00:14:26.890
But the way that the law reads, and
358
00:14:27.870 --> 00:14:29.310
it would create great harm to children
359
00:14:29.310 --> 00:14:30.840
and serve no purpose.
360
00:14:30.840 --> 00:14:33.990
So it really represents one of those
361
00:14:33.990 --> 00:14:36.360
rare times when the legislature did something
362
00:14:36.360 --> 00:14:39.480
in reaction to fear and things that were
363
00:14:39.480 --> 00:14:41.910
going on at the time that really didn't have
364
00:14:41.910 --> 00:14:42.990
a rational basis.
365
00:14:42.990 --> 00:14:47.370
So I guess to the extent that the court wants
366
00:14:47.370 --> 00:14:48.810
to decide the issue,
367
00:14:48.810 --> 00:14:51.060
I would ask that they not constitutional
368
00:14:51.060 --> 00:14:52.950
to the extent that this is an abstract question
369
00:14:52.950 --> 00:14:54.330
because it's not happening.
370
00:14:54.330 --> 00:14:57.420
I would ask that you hold that it's not just disable.
371
00:14:57.420 --> 00:15:00.480
And to the extent that there was an amicus
372
00:15:00.480 --> 00:15:04.170
announcement about section 66, I address it.
373
00:15:04.170 --> 00:15:06.810
I noticed, I don't think I put this
374
00:15:06.810 --> 00:15:08.790
in my brief, so this is why I wanted to say it,
375
00:15:08.790 --> 00:15:12.150
that section 66 uses the word 'child'
376
00:15:12.150 --> 00:15:14.250
and the last paragraph of section 68
377
00:15:14.250 --> 00:15:16.680
uses the word 'person.'
378
00:15:16.680 --> 00:15:19.290
And these statutes were changed at the
379
00:15:19.290 --> 00:15:20.850
same time in 1996.
380
00:15:20.850 --> 00:15:23.970
And it says to me, and along with the purpose
381
00:15:23.970 --> 00:15:26.730
of the legislature to treat the set
382
00:15:26.730 --> 00:15:31.110
of children as adults, that 66 just simply
383
00:15:31.110 --> 00:15:32.970
does not apply to this set of children.
384
00:15:32.970 --> 00:15:34.830
So I just wanted to note the language that's
385
00:15:34.830 --> 00:15:35.663
in the statutes.
386
00:15:35.663 --> 00:15:39.780
But isn't 66 is the broad statute
387
00:15:39.780 --> 00:15:41.674
and 68 focuses on-
388
00:15:41.674 --> 00:15:42.610
Is the specific.
389
00:15:42.610 --> 00:15:45.048
Yeah, on murder defendants.
390
00:15:45.048 --> 00:15:45.963
Yes.
391
00:15:47.555 --> 00:15:49.290
If there are no other questions,
392
00:15:49.290 --> 00:15:50.640
I would rest up the issues.