Davenport v. McGinnis , 522 P.2d 1140 ( 1974 )

ERWIN, J.,

with whom RABINO-WITZ, C. J., joins (concurring in part and dissenting in part).

While I approve of the conclusion that there was no unlawful delay in releasing Davenport from the custody of the Department of Health and Social Services, I cannot agree that the Department was under no duty to hold the appellant in an institution for delinquent juveniles rather than permitting his imprisonment in a federal penitentiary. Under our statutes, a juvenile who commits acts which may lead to his confinement but who becomes eighteen years of age before his delinquency hearing has a right to be confined in a place apart from adult criminal offenders.

As the majority reads AS 47.10.190, only minors under the age of eighteen on the date they are committed have a right to be isolated from the potentially malignant influences of adult prisoners. This result is reached by their focus on the texts of AS 47.10.190 and AS 47.10.290(6) to the exclusion of the larger terms and purposes of our juvenile statutes as a whole. Reading these two statutes in isolation, I cannot say that it is incorrect to find that “juvenile” and “minor” in AS 47.10.190 are synonyms. But I strongly disagree with the conclusion that in this common meaning rests a legislative intent that every juvenile who reaches eighteen before his delinquency hearing has no right to be confined in a juvenile institution.

In P. H. v. State, 504 P.2d 837, 841-842 (Alaska 1972), we approved a delinquency hearing held six months after the appellant’s eighteenth birthday despite the same statutory definition restricting delinquency proceedings to persons under eighteen years of age. Juveniles are accorded special, and hopefully more sensitive, treatment in our courts because, by virtue of their immaturity, they are less culpable for their acts and more susceptible to rehabilitation than adult offenders. For these reasons, among others, we held in P.H. that the age of the child at the time he commits the acts which bring him within the jurisdiction of the children’s court determines whether he is to be treated as a juvenile offender or as an adult criminal.¹ P.H. involved questions of juvenile adjudication rather than disposition, but in light of the purposes of our juvenile statutes as a whole I can see no good reason why P.H. should not guide our decision here.

Unlike the majority, I can find no reason in the arrangement of our juvenile statutes for a conclusion that the rationale of P.H. applies to “minors” in adjudications but not in dispositions. The legislature has not made a judgment that every juvenile who becomes eighteen before he has a delinquency hearing should, as a matter of law, be adjudicated as a juvenile but may be imprisoned as an adult. The fact that a juvenile has committed delinquent acts so close to his eighteenth birthday could be a proper ground for incarcerating him as an adult, but a reading of the juvenile statutes forecloses any conclusion that this reason is embodied in the synonymous use of “minor” and “juvenile” in AS 47.10.190.

Before the children’s court can decide whether a child is delinquent, the judge must determine that he is not unamenable to treatment. AS 47.10.060. If he is found to be unamenable to treatment and there is probable cause to believe that he is delinquent, jurisdiction of the children’s court is waived and a criminal prosecution may be initiated. This procedure applies to all minors under the age of eighteen at the time they commit the acts supporting a delinquency petition. Even those who reach eighteen before the waiver hearing is held are assessed for their amenability to rehabilitation. P. H. v. State, 504 P.2d 837, 841-842 (Alaska 1972); R. J. C. v. State, 520 P.2d 806, 807 (Alaska 1974). It would be inconsistent with this manifest design to find, as the majority does, that the synonymous use of “minor” and “juvenile” in AS 47.10.190 embodies an intent that all juveniles who reach the age of eighteen before their delinquency hearing should be considered in effect unamenable to juvenile treatment and thus can be incarcerated as adult criminals. The waiver hearing requires the judge to make this determination in each case.

Looking to the other justification for special juvenile procedures — the lesser culpability of the child, there is no basis for more severe treatment of those juveniles who reach eighteen before their delinquency hearing. Their blameworthiness is measured by their maturity when they commit delinquent acts. There is no reason to punish them for the fortuity of a birthday before their cases can be heard.

Another part of our juvenile statutes lends support to a conclusion that the legislature did not intend that juveniles like appellant Davenport should be held in prisons. AS 47.15.010-47.15.080 declare the Uniform Interstate Compact on Juveniles as the law of this state. Article III defines juveniles to include anyone found delinquent and subject to the jurisdiction of a juvenile court. Article IX then unequivocally provides:

That, to every extent possible, it shall be the policy of states party to this compact that no juvenile or delinquent juvenile shall be placed or detained in a prison, jail or lockup, or detained or transported in association with criminal, vicious or dissolute persons.

Clearly, under this compact, no juvenile, regardless of whether he has reached eighteen while awaiting court proceedings, can be imprisoned. If he is detained, he must be held apart from adult criminals.

To be sure, the compact does not dictate the result in this case because it regulates Alaska’s relations with other states, not the federal government with whom appellant Davenport was placed. Even though the compact does not control, it surely stands as an expression of our state’s policy on confining juveniles who reach eighteen before their delinquency hearings. Reading the unexceptioned language of the compact together with the majority’s construction of AS 47.10.190 would yield an apparent intent of the legislature that juveniles like Davenport who are adjudicated delinquent in Alaska and confined in this state or elsewhere through contract with the federal government may be held in prisons in the company of adult criminals while juveniles who also reach their eighteenth birthday before adjudication and who are found delinquent here but confined in other states or vice versa must be placed apart from adult criminals.

I cannot conceive of any set of circumstances which would lead the legislature to make this distinction. It is my view that the legislature’s intentions can be better ascertained by reading AS 47.10.190 and other apposite statutes — AS 47.10.060. AS 47.10.280,² and AS 47.15.010 Articles III and IX — as an interrelated and coherent whole. Because there are good reasons here to believe that AS 47.10.190 and AS 47.10.290(6) read in isolation do not fully and accurately embody the legislature’s intent, our policy against extending statutory language which expresses that intent does not apply.³ Accordingly, I would hold as we did in P. H. v. State that for the purpose of determining placement the term “minor” refers to the age of the juvenile at the time he commits the acts resulting in his confinement.

On this reading, the instruction given by the superior court was erroneous because it did not state when the status of “minor” under the detention statute was to be determined. I would set aside the judgment below and remand the case for a new trial on the issue of the defendants’ liability for Davenport’s confinement in a federal penitentiary.

1 . Not the least of the benefits of the children’s court proceeding are the benevolent attitude and specialized rehabilitative treatment a juvenile is entitled to in confinement. In P. H. v. State, 504 P.2d 837, 842 n. 12, we listed other benefits as (1) no criminal conviction or attendant employment prejudice and loss of civil rights, AS 47.10.080(g); (2) minimal publicity of the proceedings, AS 47.10.090; and (3) a maximum period of confinement not exceeding the child’s twentieth birthday, AS 47.10.080(e). At the time of appellant Davenport’s incarceration, the maximum period of confinement continued until a juvenile’s twenty-first birthday. § 2 ch. 118 SLA 1962.

2 . AS 47.10.280 declares the broad policy of Alaska’s juvenile statutes to be “to secure for each minor the care and guidance which is as nearly as possible equivalent to that which should be given him by his parents.”

3 . Territory of Alaska v. Five Gallons of Alcohol, 10 Alaska Reports 1, 7-8 (1940); see Aleutian Homes v. Fischer, 418 P.2d 769, 774 (Alaska 1966). Compare Alaska Mines and Minerals, Inc. v. Alaska Indus. Bd., 354 P.2d 376, 379 (Alaska 1960).