Reining In Juveniles and Aliens

By Michael S. Serrill

The high court rules on preventive detention and deportation

Fourteen-year-old Gregory Martin was arrested in New York City in 1977 for robbing another youth of his jacket and sneakers. A family-court judge ordered Martin held under New York's preventive-detention law. That meant the teenager was being confined not to ensure his appearance at trial but because he was regarded as a serious risk to commit new crimes while waiting for his case to come up. Martin and his attorney filed a class action on behalf of all children in preventive-detention in New York State, and won in two federal courts. Last week the U.S. Supreme Court overturned those decisions and ruled that preventive detention was constitutionally valid for juveniles. The decision has national import, since every state has provision for preventive custody of accused young delinquents.

Justice William Rehnquist, writing for the 6-to-3 majority, was careful to confine the opinion to juveniles; the high court has never ruled on the legality of preventive-detention laws for adults. Rehnquist wrote that society has an obligation to protect children from the consequences of their own actions, and that their right to freedom from outside control is reduced by the fact that "juveniles, unlike adults, are always in some form of custody."

Writing in dissent, Justice Thurgood Marshall found this reasoning "difficult to take seriously." Marshall stated that Rehnquist seemed to be saying that incarceration in often dangerous juvenile jails is comparable to parental supervision at home. Marshall was concerned about the breadth of the New York law, which allows a family-court judge to hold a child in preventive detention no matter what his crime or prior record.

Reagan Administration officials praised the high-court ruling. Said Alfred Regnery, director of juvenile programs for the Justice Department: "It recognizes that juvenile crime is serious business that needs to be dealt with seriously." But others were appalled. New York University Law Professor Martin Guggenheim, who handled Martin's Supreme Court appeal, denounced the decision as a "throwback to pre-20th century law," when children had few rights. Some critics thought it was especially unfortunate that the high court upheld the New York laws since Guggenheim had convinced two lower federal courts that it was being used as a vehicle to impose punishments on unconvicted youngsters. Martin, for instance, was held in preventive detention for 15 days because it was considered too risky to release him before his juvenile fact-finding hearing. Eventually, he was tried, convicted and sent home on two years' probation.

In another conservative decision, the Supreme Court last week ruled unanimously that aliens seeking to avoid deportation on political grounds must show a "clear probability" that they will be persecuted in their home countries. That stringent standard had been softened by a federal appeals court, which found it was enough to show a "well-founded fear" of persecution. But the Supreme Court decision was not as much of a blow to those seeking permission to stay in this country for political reasons as it first seemed. The court carefully limited the ruling to those trying to avoid deportation and left for another day the standards refugees must meet to gain formal asylum.

-- By Michael S. Serrill.

Reported by Anne Constable/Washington

With reporting by Anne Constable