extent to which the youths are immunized from contacts with the surrounding community, and the nature of the visitation and package privileges permitted may very according to the degree to which they are best adapted to training and discipline without material significance in indicating the nature of the commitment.
But another question of primary importance is whether the designation of Ashland for an alleged parole violator from the Juvenile Court of the District of Columbia is unconstitutional or illegal because it is a place of confinement for those convicted of crime. It must be decided whether a juvenile committed under civil or equitable proceedings may be sent to mingle with those convicted of crime.
A study of legislative history and statutory provision indicates the purpose of the Federal Youth Corrections Act, for which Ashland is a classification center and treatment facility, is to rehabilitate youths regularly convicted of crime who show promise of becoming useful citizens by providing a new alternative sentencing and treatment procedure. See H.Rep. 2979 (81st Cong., 2d Sess.); S.Rep. 1180 (81st Cong., 1st Sess.). The purpose of the Juvenile Court Act of the District of Columbia, on the other hand, is the promotion of the child's welfare and the state's best interests by the strengthening of family ties where possible, and, when it is necessary to remove the child from custody of his parents for his welfare or the safety or protection of the public, securing for him custody, care and protection as nearly as possible equivalent to that which should have been given him by his parents. D.C.Code, § 11-902. It extends not only to those who have violated the law, but also includes the truant, the abandoned, the homeless, the neglected. D.C.Code, § 11-906. When removal from the parents' custody is required, there is provision not only for commitment to the National Training School, but also probation or supervision, commitment to a qualified suitable private institution or agency, or such further disposition as may be for the best interests of the child. D.C.Code, § 11-915. The proceedings are not criminal or panal, but are an adjudication upon the status of the child. Ibid. In short, the spirit of the Act is the child's welfare under the protection of parents, whether natural parents or the state acting as parens patriae.
It appears that the purpose of the Federal Youth Corrections Act is to keep the Juvenile Court of the District of Columbia entirely separate. When the Act was made applicable to the District of Columbia, it was specifically provided in 18 U.S.C. § 5023(c), that nothing in the Act shall be construed in any wise to amend, repeal or affect the provisions of the Juvenile Court Act. The Youth Corrections Act further provides that insofar as practical, its institutions and agencies shall be used only for treatment of committed youth offenders, who shall be segregated from other offenders, and classes of committed youth offenders shall be segregated according to their needs for treatment. 18 U.S.C. § 5011.
Procedures under the Juvenile Court Act of the District of Columbia, D.C.Code, § 11-901 et seq., which was completely revised in June, 1938, may be contrasted with procedures under the Federal Juvenile Delinquency Act, § 5031 et seq.,
enacted the same month. Without deciding whether youths committed under the latter Act may be transferred to institutions such as Ashland, important differences may be noted, among them: (1) The juvenile is tried in the United States District Court, which has jurisdiction to try the substantive offense; (2) Constitutional safeguards guaranteed one accused of crime are preserved, the Act requiring affirmative consent by the juvenile (see Holtzoff, The Purposes and Constitutionality of the Federal Juvenile Delinquency Act, address before the Judicial Conference for the Fourth Circuit, 84 Cong.Rec.Appendix, pp. 3289-3291); (3) The Court is required to apprise the juvenile fully of his rights and the consequences of his consent; (4) The Attorney General may expressly direct the juvenile may not be proceeded against as a juvenile delinquent; (5) There are no provisions for secrecy of records, but proceedings are without jury and may be had in chambers; (6) The commitment may not exceed the term which might have been imposed had the juvenile been tried and convicted of the substantive offense. In contrast, while the Juvenile Court Act applicable to the District of Columbia provides, D.C.Code, § 11-915, that cases involving children may be heard by jury upon demand by the child, his parent, or guardian or the Court, since the proceedings are not criminal in nature, and the Court being without jurisdiction to try the juvenile as an accused criminal, the strict requirements of criminal trials under the Constitution are neither required nor observed.
This does not mean there is no adequate discipline available when a juvenile in the District of Columbia over the age of 16 years has violated the law. The Juvenile Court, after full investigation, may waive jurisdiction over such a juvenile when he is charged with an offense which would amount to a felony in the case of an adult, or over any child charged with an offense which if committed by an adult is punishable by death or life imprisonment. D.C.Code, § 11-914. In such a case, this Court will try the case according to Constitutional procedures. It then may proceed under any applicable law relating to the offense, or sentence the youth offender to the custody of the Attorney General for treatment and supervision under the Federal Youth Corrections Act. Thus, where investigation by the Juvenile Court has disclosed that a juvenile who has committed a felony requires training and discipline which the natural parent, the state in loco parentis, or a guardian cannot furnish, this Court, as the Court duly constituted to try felonies, has available a broad and flexible range of remedies for the care and custody of the juvenile over 16 years of age.
The Court, accordingly, concludes that both Constitution and statute forbid the transfer of a youth committed under the Juvenile Court Act to any institution designed for the custody of persons convicted of crime, inluding the Federal Correctional Institution at Ashland, Kentucky, and the commingling of such juveniles with criminals.
Because petitioner now has been held in jail for an undue length of time, the Court will order him released from custody, without prejudice to designation of the National Training School for Boys or a similar institution not designed as a place of confinement for those convicted of crime and where petitioner may not have contact or communication with those convicted of crime. In the event any designation is made of a place other than the National Training School for Boys, notice should be forthwith given counsel for petitioner and transfer postponed for 24 hours thereafter so as to permit orderly presentation of a petition for a further writ of habeas corpus. Counsel will submit order to this effect.