On petition for writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit.
The petition for a writ of certiorari is denied.
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL concur, dissenting.
Petitioner was 16 years old at the time of his arrest and at the time of his indictment for armed robbery of a post office. He was charged as an adult under 16 D.C.Code 2301(3)(A).* He [412 U.S. 909 , 910] moved to dismiss the indictment, alleging that the statutory basis for prosecuting him as an adult failed to provide him with procedural due process. The District Court, 330 F.Supp. 34, dismissed the indictment and the Court of Appeals, 472 F.2d 1329, by a divided vote reversed that judgment.
Under the statute of the District of Columbia involved in Kent v. United States, 383 U.S. 541 , a juvenile, age 16 or older, who is charged with a felony might be held for trial as though he were an adult, if the Juvenile Court waived jurisdiction. Kent held that the Act, read in light of 'the essentials of due process and fair treatment,' Id., at 562, 557, 86 S.Ct. at 1057, required a hearing on whether the Juvenile Court should waive its exclusive jurisdiction over the juvenile and transfer him to the criminal court of the District. And in In re Gault, 387 U.S. 1 , we held that where under a state junvenile court act a juvenile is declared 'delinquent' and either confined or held for regular criminal prosecution, there must be a due process hearing on the issue of 'delinquency.'
The District of Columbia Act was modified after Kent so as to give the U. S. Attorney the power to remove a juvenile from the statutory category of 'child' merely by charging him with a designated felony. The House Report No. 91-907, 91st Cong., 2d Sess., at 50, explains the reason for the change:
First. A juvenile or 'child' is placed in a more protected position than an adult, not by the Constitution but by an Act of Congress. In that category he is theoretically subject to rehabilitative treatment. Can he on the the whim or caprice of a prosecutor be put in the class of the run- of-the-mill criminal defendants, without any hearing, without any chance to be heard, without an opportunity to rebut the evidence against him, without a chance of showing that he is being given an invidiously different treatment than others in his group? Kent and Gault suggest that those are very substantial constitutional questions.
Second. The barricade behind which the prosecutor operates is that this, like other prosecutions, is committed to his informed discretion, which is beyond the reach of judicial intrusion. Justice Black and I said in dissent in Berra v. United States, 351 U.S. 131 , 135, 140, 691:
The Administrative Procedure Act, 5 U.S.C. 701 et seq., gives the courts power to review 'agency action' and to hold it unlawful, if found to be 'contrary to constitutional right, power, privilege, or immunity.' 706(2)(B). This arguably is broad enough to reach the exercise of a prosecutor's discretion in a way that violates the standards of due process laid down in Kent and in Gault.
One needs no reminder that government too can be lawless, that government cannot lead the way in law and order when it is the great malefactor. The Administrative Procedure Act is indeed part of the citizen's arsenal against lawless government. As Kenneth Davis said in Discretionary Justice (1969) p. 210 '. . . under the Administrative Procedure Act judicial review of the exercise of executive discretion is the rule and unreviewability is the exception.'
Respecting 'the settled judicial tradition' not to interfere with the prosecuting function Kenneth Davis says:
These two questions are large questions and substantial ones. I would grant the petition for certiorari in order to resolve them.
[ Footnote * ] That section reads: