American Samoa Gov’t v. Julio,

Series: 9ASR2d | Year: 1988 | 9ASR2d128
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High Court of American Samoa
Trial Division

CR No. 90-88

December 29, 1988


There is no constitutional right to be tried as a juvenile in criminal matters; legislature may therefore vest in attorney general the discretion whether to institute ordinary criminal proceedings or juvenile proceedings against a minor fourteen years of age or older, who has allegedly committed a violent crime.

In the absence of statute creating right to certification hearing to determine whether to prosecute minor as a juvenile or an adult, the minor has no due process right to such a hearing.

Territorial statute vesting discretion in attorney general to proceed against certain minors as adults was not constitutionally defective due to alleged inconsistency with general purpose of juvenile justice statute to accord special treatment to minors, since both the general rules of statutory construction and the specific language of another statutory provision indicated that the exception was deliberate and purposeful. A.S.C.A. §§ 45.0103(9)(B)(1), 45.0115(c)(2)(a).

Court will not interfere with the exercise of prosecutorial discretion unless it is shown that such discretion was unconstitutionally vested in the prosecutor or that it has been abused or [9ASR2d129] exercised in an arbitrary, capricious, or discriminatory manner.

Before KRUSE, Chief Justice, TUIAFONO, Associate Judge, and VAIVAO, Associate Judge.

Counsel: For Plaintiff, Barry I. Rose, Assistant Attorney General
For Defendant, Herbert Evans, Assistant Public Defender

The government has laid an information before the Court accusing the defendant of having committed the crime of assault in the first degree, a Class A felony, in violation of A.S.C.A. § 46.3520(a)(1). The defendant moves to quash the information and dismiss the criminal proceeding against him on the grounds that: he is a minor; and, that he has not been certified by the court to stand trial as an adult in violation of his rights to due process.

Government on the other hand, citing the Juvenile Justice Act of 1980, A.S.C.A. § 45.0115(c)(2)(A), asserts its statutory discretion to prosecute children over the age of fourteen years, who are accused of committing a “crime of violence.”


We first look to applicable statute. Section 45.0115(c)(1) provides:

When a petition filed in court alleges a child 14 years of age
or older to be a delinquent child by virtue of having committed
an act which would constitute a felony if committed by an adult
and if, after investigation and a hearing, the court finds it would
be contrary to the best interests of the child or of the public to
prosecute the child as a juvenile, it may enter an order certifying
the child to be held for criminal proceedings as an adult.

(Emphasis added). [9ASR2d130]

This enactment plainly leaves it to the “court” to make, in the first instance, the decision whether or not a child should be proceeded against as a juvenile or as an adult. The succeeding subparagraph further requires the court to conduct a hearing.

The statute, however, also provides a number of exceptions to this general requirement. See A.S.C.A. § 45.0115(c)(2). Subparagraph (2)(A) of the enactment provides in pertinent part:

A child may be charged with the commission of a felony….
when the child is: A) alleged to have committed a crime of
violence and is 14 years of age or older.

Thus the statute also attempts unequivocally to permit prosecutorial discretion —to charge a child 14 years of age or older —in certain contexts, including the situation where a crime of a violent nature is alleged.

Defendant’s Due Process Argument

The defense concedes that there is no underlying substantive constitutional or federal right to be tried as a juvenile in criminal matters. (1) Rather, we find on the cases that where a right arises to be treated as a minor (and hence to a certification hearing), it invariably arises through statute. In terms of the territorial statute, we find an exception to the general requirement for certification proceedings in the context of criminal actions alleging the commission of “violent crimes and in connection therewith, [9ASR2d131] the Fono has clearly given to the Attorney General the appropriate discretion whether to proceed under the criminal code or the Juvenile Act.

The separation of powers doctrine prevents the courts, in the normal course, from interference with such delegated discretion unless of course the discretion is abused or indeed the delegation is constitutionally improper. Having reviewed the provisions of the local statute and evaluated the weight of authority, this Court is persuaded not to depart from what it perceives as the normal course. See United States v. Bland, 472 F.2d 1329 (D.C. Cir. 1972), cert. denied 412 U.S. 909 (1973); Cox v. United States, 473 F.2nd 334 (4th Cir. ), cert. denied 414 U.S. 869 (1973); United States v. Quinones, 516 F.2d 1309 (1st Cir.), cert. denied 423 U.S. 852 (1975).

The defense referred us to a number of cases, including the Supreme Court’s decision in Kent v. United States, 383 U.S. 541 (1966). We find nothing in these cases to suggest that a person, by reason of his or her minority, has an independent or absolute right to certification proceedings in all criminally related matters. Nor do we find any suggestion requiring the court’s involvement in all cases. Rather, these cases were concerned with “statutorily” created juvenile rights and benefits necessitating judicial supervision in one manner or another. (2) Kent, for example, dealt with a District [9ASR2d132] of Columbia statute which conferred in the District’ s Juvenile Court, “exclusive” jurisdiction over minors. The enactment further provided that where the minor is accused of committing a felony the Juvenile Court may waive its “exclusive” jurisdiction and authorize the prosecution of such minor before the District Court. The Court there viewed the statutory scheme of things as entitling the minor “to certain procedures and benefits as a consequence of his…. right to the ‘exclusive’ jurisdiction of the Juvenile Court.” 383 U.S. at 557. In that a decision to waive jurisdiction by the Juvenile Court, in favor of prosecution before the District Court, could potentially mean to the minor the difference between five years confinement and the death sentence, the Court held that as a condition of valid waiver order, the minor was entitled to a hearing and access by his counsel to those social reports which a Juvenile Court might consider. Id. The Court concluded that “this result is required by the statute read in the context of constitutional principles relating to due process and the assistance of counsel.” Id.

It may thus be seen that Kent was involved with specific juvenile rights statutorily created and which attracted the requirements of procedural due process as evident from the legislative scheme of the District’s juvenile code, However, there are no comparable rights contained in the enactment before us as would attract procedural due process. There are no certification statutory hearing rights when violent crimes are alleged and in those cases the Attorney General, and not the courts, has the sole say.

Prosecutorial Discretion and Due Process

The difference between Kent and the matter before us seems to be the difference between the Fono’s vesting in the Attorney General, as opposed to the courts, the discretion whether a minor should be held to juvenile or criminal proceedings. The case of Russell v. Parratt, 543 F.2d 1214 (8th Cir. 1976), illustrates.

This case involved the consideration of a Nebraska statute which apparently gave the County [9ASR2d133] Attorney “unbridled” discretion to proceed against a minor as a juvenile or an adult. The defendant claimed he was denied due process because the County Attorney was permitted to make this decision alone without any standards and without a hearing. The 8th Circuit followed Cox, Bland, and Quinones, and held that the exercise of prosecutorial discretion did not require a due process hearing. Id. at 1216. The court also distinguished Kent noting that Kent involved the decision of the juvenile court to waive its jurisdiction, and therefore, the juvenile was entitled to a hearing on the waiver, whereas, the case at issue did not involve judicial proceedings, but rather, the “traditional exercise of discretion within the executive branch.” Id.

Similarly in Woodard v. Wainwright, 556 F.2d 781 (5th Cir, 1977), cert. denied 434 U.S. 1088 (1978), petitioners challenged the validity of a Florida statute which provided “‘[a] child of any age charged with a violation of Florida law punishable by death or life imprisonment’ shall be tried as an adult ‘[if] an indictment on such charge is returned by the grand jury. ‘ ” Id. at 783. It was within the prosecutor’s discretion to seek such an indictment.

The petitioners, relying on Kent, argued that they were entitled to a due process hearing before jurisdiction of the juvenile court could be waived.

The 5th Circuit, like the courts of the other circuits, distinguished Kent. “Kent concerned a statutory duty by a juvenile court judge to investigate and hear matters relevant to the waiver of juvenile discretion, whereas this case concerns the prosecutor’s discretionary act to present his case to a grand jury.” Id. at 784.

Further, the court upheld the statute. It reasoned that “treatment as a juvenile is not an inherent right but one granted by the state legislature, therefore the legislature may restrict or qualify that right as it sees fit, as long as no arbitrary or discriminatory classification is involved.” Id. at 785. The court, quoting Bland, supra, noted that the legislative classification created by the statute was “‘entitled to a strong presumption of validity [which] may be “set aside only if no ground can be conceived to justify [it].”‘” Id. It then rejected petitioner’s [9ASR2d134] argument that once the right to juvenile treatment is given by the legislature it cannot be taken away without due process. The court stated that petitioners had never really been given the right to juvenile treatment as the statute contained express limitations on the jurisdiction of the juvenile court. (3) Finally, the court also rejected the petitioner’s argument that the statute was an “invalid and overbroad delegation of legislative authority to the prosecutor.” Id. at 786. It said “[i]n light of our previous holding that juvenile treatment is a creation of state legislatures, we find no federal constitutional infirmity in permitting state prosecutors to employ their discretion to seek indictments against those juveniles who have allegedly committed serious crimes.” Id.


As noted above, the enactment in question is a deliberate exception to the general requirement that before a minor may be prosecuted as an adult a certification decision must be made by the courts. This exception clearly permits prosecutorial discretion with the executive in cases alleging violent crimes. As the cases point out, the fact that this discretion is considerable does not result in the denial of due process. One case spoke of this prosecutorial discretion as involving [9ASR2d135]
“no more than that which is inherent in our system of criminal justice. Its origin is found in the common law of England.” Johnson v. State, 314 So.2d 573, 577 (Fla. 1975).

Further, at common law a child over the age of 14 years was presumptively capable of committing a crime and the prosecution of such a person, as in every other case, was the subject of prosecutorial discretion. The amenability of minors to the criminal process has now been changed by the various juvenile codes legislatively adopted. What is in the power of the legislature to grant is also in the power of the legislature to withhold or limit as long as no arbitrary or discriminatory classification is involved. Woodard v. Wainwright, supra. Accordingly the reservation of prosecutorial discretion in whether or not to indict a minor accused of committing a certain range of offenses is historically well founded in our legal system.

Finally, the defense went to great lengths to attempt to show the desirability of eliminating prosecutorial discretion in favor of judicial certification proceedings. We simply dismiss these contentions as normative argument. The policy reasons behind certification proceedings versus prosecutorial discretion are matters within the legislative realm. The cite to Government v. Fuaalii. 4 A.S.R. 828 (1975) is misplaced reliance. The reasoning in Fuaalii, concerned legislative policy decisions which have been repealed by the statute before us and accordingly the case inapposite.

We conclude on the foregoing that the criminal information laid before the Court was the exercise of prosecutorial discretion vested in the Attorney General by the provisions of A.S.C.A. § 45.0115(c)(2)(A). There has been no showing whatsoever of abuse or that the exercise of this discretion has been arbitrary, capricious, or discriminatory.

Denied. It is so ordered.


1. The Florida Supreme Court in Johnson v. State, 314 So. 2d 573 (Fla. 1975), rejected an argument to the effect that due process is denied by a statute which created an exception to the jurisdiction of the juvenile court over a minor charged with the commission of a crime punishable by death or life imprisonment. The court explained that a child who is accordingly being prosecuted as an adult is not deprived of due process because he has in effect the same substantive and procedural rights as any other person charged with a criminal offense. Id. at 577.

2. The territorial Juvenile Justice Act of 1980 does not create a new juvenile court. The reference to “Court” in the enactment means Trial Division of the High Court. See § 45.0103(8). This same division which has jurisdiction over the prosecution of “violent crimes” also undertakes the certification hearings required by section 45.0115(c)(1). The Act’s provision for judicial involvement in certification proceedings is somewhat different than the statutory schemes adopted by many of the states. These create separate juvenile courts with “exclusive” jurisdiction over minors. Such schemes authorize the juvenile court to waive its jurisdiction over minors accused of certain crimes in favor of the criminal courts. However, such waiver proceedings must afford procedural due process to the minor affected. See discussion of Kent, infra.

3. The defense raised a similar argument at hearing contending that A.S.C.A. section 45.0115(c)(2)(A) was constitutionally defective in that it was inconsistent with the overall purposes of the Juvenile Justice Act, namely, to accord the special treatment of minors. The innuendo is that the inclusion of this provision by the legislature was oversight.
Quite apart from the Court’s difficulties in accepting such an interpretation because of the familiar rules pertaining to statutory construction, it is clear from the Act that the Fono’s inclusion of the enactment was, to the contrary, quite deliberate and purposive. Section 45.0103(9)(B)(I) excludes from the definition of “delinquent child,” “children 14 years of age or older who allegedly commit crimes of violence.” The exception is recurring and not mistaken.