United States v. Jerome T. Bland

The United States as statutory appellant seeks review of a memorandum opinion and order of the United States District Court for the District of Columbia, holding 16 D.C.Code Sec. 2301(3)(A) unconstitutional as (1) an arbitrary legislative classification and (2) a negation of the presumption of innocence.1 Section 2301(3)(A) provides:

The term "child" means an individual who is under 18 years of age, except that the term "child" does not include an individual who is sixteen years of age or older and-

(A) charged by the United States Attorney with (i) murder, forcible rape, burglary in the first degree, robbery while armed, or assault with intent to commit any such offense, or (ii) an offense listed in clause (i) and any other offense properly joinable with such an offense. . . .2

The appellee, born 30 July 1954, had been indicted pursuant to Section 2301(3)(A) as an adult (he was sixteen at the time of his arrest and indictment) on charges of armed robbery of a post office and related offenses on 8 February 1971. Appellee moved below to dismiss the indictment for lack of jurisdiction, asserting that the statutory basis for prosecuting him as an adult was constitutionally deficient in that it failed to provide him with procedural due process. The District Court dismissed the indictment.3

Congress, pursuant to its constitutional authority to exercise exclusive jurisdiction over the District of Columbia,4 created the Family Division of the Superior Court of the District of Columbia.5 In defining the jurisdiction of the Family Division, Congress conferred on it exclusive jurisdiction of "proceedings in which a child, as defined in section 16-2301, is alleged to be delinquent, neglected, or in need of supervision."6 Thus, the Family Division's jurisdiction extends over a person-a child-alleged to have committed delinquent acts, a child being classified as a person not having yet reached the chronological age of 18 and not charged by the United States Attorney with certain specified crimes listed in 16 D.C.Code Sec. 2301. As to any other individual, either one who has reached 18 or who has reached the age of 16 and has been charged by the United States Attorney with one or more of the enumerated felonies,7 he is not a child and is to be prosecuted in the regular adult court system, whether it be the D.C. Superior Court or the United States District Court.8

*****

* * *The legislative history accompanying 16 D.C.Code Sec. 2301 reveals Congress' intent in enacting this legislation: To improve the operation of the juvenile justice system in the District of Columbia by removing from its jurisdiction certain individuals between the ages of 16 and 18 whom Congress concluded (1) were beyond rehabilitation in the juvenile justice system, and (2) whose presence in that system served as a negative influence on other juveniles. This represents a policy judgment of Congress, after gathering extensive appropriate evidence, as to how persons should be classified as "adult" and "child" for the purposes of rehabilitation following the commission of a criminal offense. We note that the policy judgment was both negative and positive: some previously classified as juveniles were beyond rehabilitation; others of the same chronological age were susceptible to special juvenile treatment, and for any chance of success these latter should be protected against the hard-core repeat offenders of the same chronological age.

While Congress easily could have established 16 as the age cutoff date (it is not clear what constitutional infirmities our dissenting colleague would have found in that less sympathetic approach), it concluded that some within the 16-18 age bracket were susceptible of rehabilitation, and determined that those age 16 and 17 whose offenses charged were minor were to be included within the juvenile system. As the Department of Justice made clear in its Memorandum to the Senate Committee:

The jurisdictional age for all juveniles was not lowered to 16 because there are still first offenders charged with minor offenses who may benefit from juvenile treatment up to the age of 18, and treating them as adults may be harsh and unnecessary. At the same time, experience has shown that in certain crime categories, juvenile treatment is unworkable. Accordingly, the jurisdictional age has been lowered with respect to these crimes.9

Under the initial Senate version of Section 2301, the jurisdiction of the Family Division

extends, in general, to persons under the age of 18. Excluded from the latter class, however, is any person 16 years of age or older in any case (1) where such person is formerally [sic] charged with the commission of one or more of certain enumerated grave offenses, and (2) where such persons has [sic] previously had the benefit of special juvenile disposition after being charged with serious misconduct committed after attaining the age of 15.10

The Senate Committee on the District of Columbia, in revealing its rationale for excluding such persons from the jurisdiction of the Family Division, stated:

The Committee has concluded that a juvenile can reliably be considered too well formed or sophisticated for, and beyond the reach of, mere juvenile therapy if the particular juvenile has already been exposed, in years of relative discretion, to the juvenile system and treated to the extent that his case required (as suggested by a prior finding of delinquency), and has nevertheless returned to serious misconduct (as suggested by a serious felony charge).11

The initial House version of Section 2301 provided that "a person, 16 years of age or older, who is charged by the United States attorney with an enumerated violent crime [a more extensive list than contained in the initial Senate version] is automatically subject to the jurisdiction of the adult court."12 The House Committee on the District of Columbia, referring to the same statistics on serious offenses committed by juveniles and to the growing recidivist rate among this group cited by the Senate Committee,13 gave the following as the basis for its exclusion of those 16 years of age or older charged with a certain serious crime from the Family Division's jurisdiction:

Because of the great increase in the number of serious felonies committed by juveniles and because of the substantial difficulties in transferring juvenile offenders charged with serious felonies to the jurisdiction of the adult court under present law, provisions are made in this subchapter for a better mechanism for separation of the violent youthful offender and recidivist from the rest of the juvenile community.14

As finally enacted, Section 2301 reflects a compromise between the initial Senate and House versions. It provides that the Family Division shall have jurisdiction over "persons under 18 except those 16 and older charged by the United States attorney with murder, forcible rape, robbery while armed, burglary in the first degree, or assault with intent to commit one of these offenses, or any such offense and a properly joinable offense."15 As such, it eliminates the previous finding of delinquency required under the initial Senate version and shortens the list of serious crimes contained in the initial House version.

II. The Due Process and Equal Protection of the Law Issue

The District Court found Section 2301(3)(A) invalid as violative of due process of law:

The determination that a child should be tried as an adult cannot be made without the safeguard of basic due process. Without a provision in the new statute that would require some determination, reached after a fair hearing, that an individual is beyond the help of the Family Division, that statute must fall as violative of due process.16

To the Government's objection below that the statute specifically classifies those individuals who are at least 16 years of age and charged with certain enumerated crimes by the United States Attorney as exempt from the Family Division's jurisdiction, the District Court found no standards in the statute to guide the United States Attorney in making this determination, hence it held that the statute denies due process to those individuals so charged.

In relation to this holding of the District Court, we note in the first place that legislative classifications are entitled to a strong presumption of validity and may be "set aside only if no grounds can be conceived to justify them."17 As the Supreme Court has long held:

It is a salutary principle of judicial decision, long emphasized and followed by this Court, that the burden of establishing the unconstitutionality of a statute rests on him who assails it, and that courts may not declare a legislative discrimination invalid unless, viewed in the light of facts made known or generally assumed, it is of such a character as to preclude the assumption that the classification rests upon some rational basis within the knowledge and experience of the legislators.18

As the discussion on the legislative background of Section 2301(3)(A), supra, indicates, Congress was well acquainted with the problems confronting the juvenile justice system in the District of Columbia; logically its definition of the Family Division's jurisdiction reflects its particular concern with the rise in the number of serious crimes committed by those 16 years of age and over coupled with the growing recidivist rate among this group.

Secondly, legislative exclusion of individuals charged with certain specified crimes from the jurisdiction of the juvenile justice system is not unusual. The Federal Juvenile Delinquency Act excludes offenses which are punishable by death or life imprisonment. Several states have similarly excluded certain crimes in defining the jurisdiction of their respective systems of juvenile justice,19 while others vest concurrent jurisdiction over enumerated crimes in both their adult and juvenile courts.20 Finally, the United States District Court for the District of Maryland, upheld by the Fourth Circuit, while it did find a geographic age distinction in the jurisdiction of the Maryland Juvenile Court violative of due process, found no difficulties with the exclusion of those 14 years of age and over charged with capital crimes from juvenile jurisdiction.21

The disagreement of our dissenting colleague arises almost solely from his fundamental unwillingness to accept Congress' power to define what is a "child." The words "child," "infant," and "minor" from early times in various legal systems have been susceptible to definition by statute; the critical "age" for specified purposes has varied, and differed between male and female. See Bouvier's Law Dictionary; Black's Law Dictionary. Before 1970 the District of Columbia Code (16 D.C.Code Sec. 2301 (1967)), defined "child" as "a person under 18 years of age." Our dissenting colleague seems to consider this statute and its definition immutable, apparently because it was involved in Kent v. United States;22 we accept the fact that Congress has abolished this statutory definition and by statute substituted another, to which we simply give full effect.

We think the position of the appellee here would have more validity if it were possible to read (as apparently the dissenting opinion does) the word "child" as "child (as defined in the previous and now repealed statute)," but of course this is absurd. Yet it is necessary that the meaning of "child" be as defined in the repealed statute for the legal position of the appellee to be sustained. Believing that Congress has power to amend a statutory definition, we start with the definition of "child" currently on the statute books, and reach the legal conclusions set forth herein.

Similarly, the appellee's argument on an alleged "waiver" of the jurisdiction of the Family Court is based on the now outmoded definition. The District of Columbia Code states clearly that the jurisdiction of the Family Division of the Superior Court in delinquency cases is limited to those who come within the statutory definition of "child." 11 D.C.Code Sec. 1101 provides:

The Family Division of the Superior Court shall be assigned, in accordance with chapter 9, exclusive jurisdiction of-

(13) proceedings in which a child, as defined in 16-2301, is alleged to be a delinquent. . . . (Emphasis supplied.)

Until it is determined whether a person is a "child" within the statutory definition, there is no jurisdiction; therefore, a fortiori there can be no waiver of jurisdiction.

Nor is it true "a suspected juvenile remains a child until he is charged with an enumerated offense by the United States Attorney." There is just no classification of the person as a child or an adult until (1) his age is accurately ascertained, and (2) the decision on prosecution is made. Congress has incorporated more than one element in the definition of a "child." Until all the elements of the definition are ascertained, the status of the person is simply uncertain, just as under the 1967 definition the status of a person would be uncertain until his true age was established.

The District Court's finding in the case at bar, and appellee's assertion to the same effect-that the exercise of the discretion vested by Section 2301(3)(A) in the United States Attorney to charge a person 16 years of age or older with certain enumerated offenses, thereby initiating that person's prosecution as an adult, violates due process-ignores the long and widely accepted concept of prosecutorial discretion, which derives from the constitutional principle of separation of powers. The Fifth Circuit, in holding that a court had no power to compel a United States Attorney to sign an indictment, stated:

Although as a member of the bar, the attorney for the United States is an officer of the court, he is nevertheless an executive official of the Government, and it is as an officer of the executive department that he exercises a discretion as to whether or not there shall be prosecution in a particular case. It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions.23

While there may be circumstances in which courts would be entitled to review the exercise of prosecutorial discretion, these circumstances would necessarily include the deliberate presence of such factors as "race, religion, or other arbitrary classification," not found in the case at bar.24 For example, in the absence of such factors, this court has held that the exercise of prosecutorial discretion, even when it results in different treatment of codefendants originally charged in the same case with the same offense, does not violate due process or equal protection of the law.25

The District Court and appellee in the case at bar point to the acknowledged significant effect of the United States Attorney's decision whether to charge an individual 16 years of age or older with certain enumerated offenses, and conclude that, in the absence of a hearing, due process is violated when such a decision is made. This, however, overlooks the significance of a variety of other common prosecutorial decisions, e. g., whether to charge one person but not another possible codefendant; whether to charge an individual with a misdemeanor or a felony; etc.26 Furthermore, the decision whether to charge an individual with a misdemeanor or a felony has long determined the court in which that person will be tried.27 We cannot accept the hitherto unaccepted argument that due process requires an adversary hearing before the prosecutor can exercise his age-old function of deciding what charge to bring against whom. Grave consequences have always flowed from this, but never has a hearing been required.

While the Supreme Court was presented with the precise question raised by this appeal on an earlier occasion, it declined to rule on the question because of "the barrenness of the record on this issue," including the failure of the Nebraska Supreme Court to pass on it, and the fact that "[s]o far as we have been made aware, this issue does not draw into question the validity of any Nebraska statute."28 The Federal Juvenile Delinquency Act, however, presents an analogous situation on which courts have passed judgment. Section 5032 of the Act provides in relevant part:

A juvenile alleged to have committed one or more acts in violation of a law of the United States not punishable by death or life imprisonment, and not surrendered to the authorities of a state, shall be proceeded against as a juvenile delinquent if he consents to such procedure, unless the Attorney General, in his discretion, has expressly directed otherwise.29

The discretion provided the Attorney General under this section can, of course, result in vastly different consequences for an individual subject to the Act since commitment of a juvenile adjudicated delinquent may continue under the Act,30 as under the comparable provision of the D.C.Code,31 only for the remainder of the youth's minority. Despite the significance of this decision, Judge Weinfeld of the District Court for the Southern District of New York stated:

. . . under this section [Sec. 5032], which requires the juvenile's consent to such proceeding, the ultimate decision as to whether the Government will forego prosecution under the general criminal statutes rests in the sole discretion of the Attorney General. The Assistant Attorney General, who is authorized to exercise the Attorney General's discretion, has directed that this defendant be prosecuted under regular adult criminal procedures. The Court is without power to interfere with or overrule the exercise of this discretion.32

As such, judicial consideration of the legitimate scope of prosecutorial discretion clearly encompasses the exercise of such discretion where it has the effect of determining whether a person will be charged as a juvenile or as an adult. In the absence of such "suspect" factors as "race, religion, or other arbitrary classification," the exercise of discretion by the United States Attorney in the case at bar involves no violation of due process or equal protection of the law.

The District Court and appellee assert that the exercise of discretion by the United States Attorney under Section 2301(3)(A) violates due process in that it denies the individual charged the presumption of innocence.

This, however, mistakes the nature of the United States Attorney's decision in the case at bar to charge appellee with an offense enumerated in Section 2301(3)(A). While the decision does have the effect of determining whether appellee is to be tried as an adult or a juvenile, it is not a judgment of guilt or an imposition of penalty. On the contrary, it is simply the result of a determination by the United States Attorney that there is sufficient evidence to warrant prosecution of the appellee for the offense charged and that adult prosecution is appropriate. It in no manner relieves the Government of its obligation to prove appellee's guilt beyond a reasonable doubt.33 Nor does it remove appellee's right to a jury trial. As the subsequent opinion of District Judge Gesell, ruling on this same issue under this statute, recognized:

It should be noted that all the traditional protections of grand jury presentment, preliminary hearing and jury trial are afforded this group of [alleged] offenders and that in the event of convictions the extraordinarily flexible provisions of the Federal Youth Correction Act designed to create programs for limited incarceration and effective rehabilitation are completely available.34

The presumption of innocence, as the Supreme Court has long held, applies to the prosecution at trial and ". . . is a conclusion drawn by the law in favor of the citizen, by virtue whereof, when brought to trial upon a criminal charge, he must be acquitted, unless he is proven [beyond a reasonable doubt] to be guilty."35 As such, the District Court's opinion below and appellee's reliance on, inter alia, Goldberg v. Kelly36 and Jones v. Robinson37 is mistaken; in contrast to the summary adjudications found wanting in those cases, the United States Attorney's decision in the case at bar marks only the beginning of the process of adjudication of appellee's guilt, a process marked by the presence of all the traditional protections or procedural due process, followed by the extraordinarily liberal rehabilitation provisions of the Federal Youth Corrections Act.

For these reasons, the order of the District Court dismissing appellee's indictment, on the basis of its opinion holding 16 D.C.Code Sec. 2301(3)(A) unconstitutional as an arbitrary legislative classification and as a negation of the presumption of innocence, is accordingly reversed and the case remanded for trial.

Reversed and remanded.

J. SKELLY WRIGHT, Circuit Judge, dissenting:

As a matter of abstract legal analysis, the opinion of my brethren might appear to some degree persuasive. But we do not sit to decide questions in the abstract, and we are not writing on a clean slate. In 1966 the Supreme Court spoke clearly and specifically about this area. See Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). It held, in unmistakable terms, that before a child under 18 can be tried in adult court the Constitution requires a hearing "sufficient in the particular circumstances to satisfy the basic requirements of due process and fairness * * *." Id. at 553, 86 S.Ct. at 1053.1 I had not supposed that it was within our power as a lower federal court to change this mandate. Nor had I imagined that Congress could "overrule" this constitutional decision by a simple statutory enactment. Yet the majority holds that whereas before passage of the Court Reform Act of 1970 the Constitution required a hearing, after its passage the Constitution requires no such thing. While I must confess that this display of judicial legerdemain leaves me properly dazzled and mystified, I cannot quite persuade myself that the rabbit has really emerged from the hat. I would therefore hold that appellee is entitled to a hearing with counsel and a statement of reasons before he can be charged and tried as an adult.

* From the majority's discussion of the statute's legislative history, one might assume that the definition of "child" in 16 D.C.Code Sec. 2301(3)(A) (Supp. V. 1972) has remained unchanged from earliest times or that the story of how it took its present form is uninteresting and irrelevant. In fact, 16 D.C.Code Sec. 2301(3)(A) is a fairly recent addition to the Code and its legislative history has a direct bearing on the proper resolution of this case.

Before 1970 the District of Columbia Code defined "child" as "a person under 18 years of age." See 16 D.C.Code Sec. 2301 (1967). 11 D.C.Code Sec. 1551(a)(1) (1967), in turn, granted "original and exclusive jurisdiction" to the Juvenile Court for the trial of children as defined in 16 D.C.Code Sec. 2301. Thus initially any person under the age of 18 was to be tried in Juvenile Court. It did not necessarily follow, however, that such a trial always took place. Under the provisions of 11 D.C.Code Sec. 1553 (1967), the Juvenile Court was permitted to "waive" jurisdiction over a child 16 years of age or older who was charged with a felony or over any child charged with a crime punishable by death or life imprisonment. While such a waiver was to be preceded by a "full investigation," the statute on its face prescribed no standards governing the waiver determination. In practice, the "full investigation" frequently proved cursory in nature, cf., e.g., United States v. Howard, 146 U.S.App.D.C. 10, 449 F.2d 1086 (1971); Haziel v. United States, 131 U.S.App.D.C. 298, 404 F.2d 1275 (1968), although the procedural protections surrounding it were gradually expanded under the proddings of this court. See, e. g., Watkins v. United States, 119 U.S.App.D.C. 409, 343 F.2d 278 (1964) (juvenile entitled to access to his social records during waiver proceedings); Black v. United States, 122 U.S.App.D.C. 393, 355 F.2d 104 (1965) (juvenile entitled to counsel at waiver proceedings).

Matters stood at this point when, in 1966, the Supreme Court considered the statute in its landmark Kent decision. The Court began its analysis by observing that the waiver decision was vitally important to the accused-that, indeed, it could potentially mean the difference between a few years confinement and a death penalty. 383 U.S. at 557, 86 S.Ct. 1045.

"* * * It is clear beyond dispute that the waiver of jurisdiction is a 'critically important' action determining vitally important statutory rights of the juvenile. * * * The Juvenile Court is vested with 'original and exclusive jurisdiction' of the child. This jurisdiction confers special rights and immunities. He is, as specified by the statute, shielded from publicity. He may be confined, but with rare exceptions he may not be jailed along with adults. He may be detained, but only until he is 21 years of age. The court is admonished by the statute to give preference to retaining the child in the custody of his parents 'unless his welfare and the safety and protection of the public can not be adequately safeguarded without . . . removal.' The child is protected against consequences of adult conviction such as the loss of civil rights, the use of adjudication against him in subsequent proceedings, and disqualification for public employment. * * *"

383 U.S. at 556-557, 86 S.Ct. at 1055.

In light of the obviously crucial nature of these rights, the Court affirmed the Black-Watkins requirements of access to social records and assistance of counsel during waiver proceedings. But it also held that the statute, when "read in the context of constitutional principles relating to due process and the assistance of counsel," 383 U.S. at 557, 86 S.Ct. at 1055, required more. Specifically, the juvenile was "entitled to a hearing * * and to a statement of reasons for the Juvenile Court's decision." Ibid. This was because "there is no place in our system of law for reaching a result of such tremendous consequences without ceremony-without hearing, without effective assistance of counsel, without a statement of reasons. It is inconceivable that a court of justice dealing with adults, with respect to a similar issue, would proceed in this manner. It would be extraordinary if society's special concern for children, as reflected in the District of Columbia's Juvenile Court Act, permitted this procedure." 383 U.S. at 554, 86 S.Ct. at 1053.

Thus during the period immediately after Kent juveniles were afforded a wide range of procedural rights in connection with waiver proceedings. So matters stood until 1970 when, in conjunction with sweeping legislation to reform the District of Columbia judicial system, Congress made some innocuous sounding changes in the Juvenile Court's jurisdiction. The new legislation retained the basic waiver mechanism, although the statute now explicitly provided for a hearing and a statement of reasons and established some standards to guide the judge in making the waiver decision. See 16 D.C.Code Sec. 2307 (Supp. V 1972). Similarly, the new statute continued to grant "exclusive jurisdiction" to the Family Court for "proceedings in which a child, as defined in section 16-2301, is alleged to be delinquent * *." 11 D.C.Code Sec. 1101(13) (Supp. V 1972). But whereas previously a "child" had been defined to include all persons 18 years of age or younger, the new 16 D.C.Code Sec. 2301 excepted from the definition "an individual who is sixteen years of age or older and * * * charged by the United States Attorney with (i) murder, forcible rape, burglary in the first degree, robbery while armed, or assault with intent to commit any such offense, or (ii) an offense listed in clause (i) and any other offense properly joinable with such an offense." 16 D.C.Code Sec. 2301(3)(A) (Supp. V 1972).

As a moment's reflection makes clear, this so-called "definition" in fact establishes a second, parallel waiver procedure whereby a juvenile can be transferred from the Family Division to adult court. If the Government chooses, it may institute waiver proceedings in Family Court and attempt to convince the judge that under the standards enunciated in the Act the child could more appropriately be tried in adult court. It would be surprising if this procedure were much utilized in cases covered by 16 D.C.Code Sec. 2301(3)(A), however, since under it the Government must observe the procedural rules mandated by Kent. Moreover, there is always the possibility that the Government will not carry its burden before the Family Court judge, in which case the waiver attempt would fail.

These risks and inconveniences can be avoided by following the second alternative. If the prosecutor simply charges the juvenile with one of the enumerated offenses, the juvenile ceases to be a "child" under 16 D.C.Code Sec. 2301(3)(A) and, hence, the Family Court is automatically divested of jurisdiction.2 Thus if the prosecutor follows the second alternative the waiver decision becomes his alone, and he is permitted to make it without the encumbrance of a hearing, the requirement that he state reasons, the inconvenience of bearing the burden of proof, or the necessity of appointing counsel for the accused.

I think it obvious that this second procedure was written into the Act in order to countermand the Supreme Court's decision in Kent as well as this court's rulings in Watkins and Black. Indeed, the House Committee primarily responsible for drafting the provision virtually admitted as much. The Committee Report explains 16 D.C.Code Sec. 2301(3)(A) as follows:

"Because of the great increase in the number of serious felonies committed by juveniles and because of the substantial difficulties in transferring juvenile offenders charged with serious felonies to the jurisdiction of the adult court under present law, provisions are made in this subchapter for a better mechanism for separation of the violent youthful offender and recidivist from the rest of the juvenile community."

H.Rep. 91-907, 91st Cong., 2d Sess., at 50 (1970). (Emphasis added.) While the surface veneer of legalese which encrusts this explanation need fool no one, a simultaneous translation into ordinary English might, perhaps, prove helpful. The "substantial difficulties * * * under present law" to which the Committee coyly refers are, of course, none other than the constitutional rights explicated in the Kent decision. And the "better mechanism" which the Committee proposes is a system for running roughshod over those rights in a manner which is unlikely to encourage those of us still committed to constitutionalism and the rule of law.3

This blatant attempt to evade the force of the Kent decision should not be permitted to succeed. The result in Kent did not turn on the particular wording of the statute involved or on the particular waiver mechanism there employed. Rather, as the Court itself made clear, the rights expounded in Kent are fundamental and immutable. "The right to representation by counsel is not a formality. It is not a grudging gesture to a ritualistic requirement. It is of the essence of justice." 383 U.S. at 561, 86 S.Ct. at 1057. I must confess, therefore, that I find myself unable to approach the majority's elaborate argumentation with an entirely open mind. As one who has long believed that our Constitution prohibits abrogations of due process "whether accomplished ingeniously or ingenuously," Smith v. Texas, 311 U.S. 128, 132, 61 S.Ct. 164, 85 L.Ed. 84 (1940), I react with a good deal of skepticism to an argument which supposes that "the essence of justice" can be defeated by a juggling of the definition of juvenile or a minor modification of Family Court jurisdiction. Nonetheless, I am willing to meet the majority on its own ground, since I am convinced that when its arguments are closely examined they must inevitably fall of their own weight.

I take it that my brethren and I begin our analysis of 16 D.C.Code Sec. 2301(3)(A) with a common premise:4 nothing in the Constitution prevents Congress from shifting the waiver decision from the Family Court judge to the United States Attorney or from establishing a supplemental waiver proceeding before the United States Attorney to complement the Family Court proceeding. There may be some decisions which are so peculiarly judicial in nature that they may not be transferred to an executive officer without running afoul of the Constitution. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Cf. Crowell v. Benson, 285 U.S. 22, 54-63, 52 S.Ct. 285, 76 L.Ed. 598 (1932). But, as the many cases cited by the majority demonstrate, this decision is simply not one of them. See, e. g., Ramirez v. United States, S.D.N.Y., 238 F.Supp. 763 (1965); United States v. Verra, S.D.N.Y., 203 F.Supp. 87 (1962).

It should be readily apparent, however, that this observation does little to advance the argument. The issue in this case is not whether the prosecutor should be permitted to make waiver decisions, but rather how he should go about making those decisions.5 Put slightly differently, the question is whether the shift in decision making responsibility from the court to the prosecutor eliminates the need for the procedural rights expounded in Kent. I would, of course, answer that question "no." The transfer of the waiver decision from the neutral judge to the partisan prosecutor increases rather than diminishes the need for due process protection for the child. In answering the question "yes" the Government and the majority here rely on essentially three lines of argument. Although these contentions are interrelated, for purposes of analysis they are best addressed seriatim.

* The Government firs