Opinion
No. 03-113(M)
March 20, 2003
ERNESTO LOPEZ SOLTERO, Assistant United States Attorney, U.S. Attorney's Office, Hato Rey, Puerto Rico, for Plaintiff or Petitioner.
JUAN F. MATOS DE JUAN, Esq., Assistant Federal Public Defender, Hato Rey, Puerto Rico, for Defendant or Respondent.
OPINION AND ORDER
The United States filed a criminal complaint on March 18, 2003, charging the above juvenile with knowingly, intentionally, and unlawfully importing into the United States from a place outside thereof, and with possession with intent to distribute, approximately 96 grams of heroin. Given the fact that defendant is a juvenile, the complaint states that said acts would have been an offense punishable under the Controlled Substance Act, 21 U.S.C. § 952(a) 841(a)(1), 18 U.S.C. § 2, all in violation of 18 U.S.C. § 5032, had the juvenile been an adult.
The United States now moves the court for an order authorizing it to obtain face and profile photographs, as well as full hand and fingerprints of the juvenile. Such evidence, the United States submits, would assist in the current investigation of this case inasmuch as there are other witnesses and it wishes to present such potential witnesses with a photo line-up array. The fingerprints will also assist in the investigation according to the government. The juvenile opposes the government's motion on the grounds that the government fails to meet the initial threshold imposed by the statute, that is, an adjudication of guilt. The juvenile further claims that the government has not articulated any compelling reasons to justify an intrusion upon the minor's rights.
DISCUSSION
Title 18 U.S.C. § 5038, governs the use of juvenile criminal records. Subsection (d) of the statute provides:
Whenever a juvenile is found guilty of committing an act which if committed by an adult would be a felony that is a crime of violence or an offense described in section 401 of the Controlled Substances Act or section 1001(a), 1005, or 1009 of the Controlled Substances Import and Export Act, such juvenile shall be fingerprinted and photographed. Except a juvenile described in subsection (f), fingerprints and photographs of a juvenile who is not prosecuted as an adult shall be made available only in accordance with the provisions of subsection (a) of this section. Fingerprints and photographs of a juvenile who is prosecuted as an adult shall be made available in the manner applicable to adult defendants.18 U.S.C. § 5038(d) (2002). Before its amendment in 1984, this particular section provided that the photographs or fingerprints of a juvenile be taken with the written consent of a judge or magistrate. 18 U.S.C. § 5038(d)(1) (1976); United States v. Sechrist, 640 F.2d 81, 87 (7th Cir. 1981). In 1984, Congress amended subsection (d) of the statute to the end that it now reads as stated above. The amendment to section 5038 does not provide procedures for photographing and fingerprinting a juvenile that has not been found guilty of an offense and there are no federal cases dealing specifically with the issue post amendment.
(d) Unless a juvenile who is taken into custody is prosecuted as an adult — (1) neither the fingerprints nor a photograph shall be taken without the written consent of the judge.
Senate Report No. 98-225 discusses the amendment to subsection (d). It states as follows:
Confidentiality of juvenile records has been protected at the expense of informed decision-making by federal judges in cases involving juveniles. The committee determined that the interest to society in identifying and tracking youthful offenders under some circumstances must take precedence over the juvenile offender's interest in confidentiality.
In addition, fingerprints, photographs, and records of prior convictions must be maintained on juveniles charged with an offense that if committed by an adult would be a crime of violence.
The committee believes these amendments will equip the juvenile justice system with tools adapted to meet the challenges posed by today s violent youths. Subjecting these youths to closer scrutiny by the courts, while subjecting the courts to closer scrutiny by the public, will lead to a fairer, more effective juvenile justice system.
S. Rep. No. 98-225, at 387 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3527. The report explains that prior to being amended, subsection (d) prohibited the fingerprinting and photographing of juveniles adjudicated delinquent without a court order. S. Rep. No. 98-225, at 392. The subsection was amended to provide for the fingerprinting and photographing, not only of juveniles prosecuted as adults as permitted under the law, but also of juveniles adjudicated delinquent with respect to offenses that are felonies of violence or serious drug crimes. Id. The report makes reference to the importance of fingerprints and photographs in the investigated process and to the fact that juveniles commit a disproportionate number of these crimes. Id. The committee further states that the purpose of the amendment is the creation of these records for juveniles who have committed serious violent or drug offenses. Id. (emphasis added).
The phrase "who has committed" as well as the phrase "juveniles adjudicated delinquent" reveal the intent of Congress that fingerprinting and photographing of juvenile defendants be allowed only after the juvenile has been found guilty of the offenses contemplated and not before. The language of the statute is also clear when it states that the fingerprints and photographs shall be taken "[w]henever a juvenile is found guilty of committing an act. . . ." 18 U.S.C. § 5038(d) (2002). Prior to the amendment, judicial consent was required in order to do so, but always contemplating that the juvenile had been adjudicated delinquent first. In essence, what the amendment to the statute did was to eliminate the requirement of a court order for juveniles found guilty of the specific crimes therein provided. It does not eliminate the requirement that they be found guilty first.
One must keep in mind the goals of the Federal Juvenile Delinquency Act. "The purpose of the FJDA `is to remove juveniles from the ordinary criminal process in order to avoid the stigma of a prior criminal conviction and to encourage treatment and rehabilitation.'"United States v. One Juvenile Male, 40 F.3d 841, 844 (6th Cir. 1994) (quoting United States v. Brian N., 900 F.2d 218, 220 (10th Cir. 1990)). If the purpose of the Act is to avoid the stigma of a prior criminal conviction, and to encourage rehabilitation, the creation of a permanent record is not in accordance with the spirit of the statute except in the circumstances described in it. Therefore, a juvenile shall only be photographed or fingerprinted whenever found guilty of a serious violent or drug offense.
If found guilty, the juvenile in this case would be subject to photographing and fingerprinting since this juvenile has been charged with an offense under 21 U.S.C. § 841, 952.
Finally, the government cites cases for the proposition that the Fifth Amendment privilege against self-incrimination is not violated whenever the government obtains physical and real non-testimonial evidence. See Pennsylvania v. Muñiz, 496 U.S. 582 (1989); Schmerber v. California, 384 U.S. 757 (1966); United States v. Dougall, 919 F.2d 932, 935 (5th Cir. 1990); United States v. Maceo, 873 F.2d 1 (1st Cir. 1989). The issue presented here is not one of self-incrimination. Rather, my focus is on the purpose and goals of the Juvenile Delinquency Act. There must be a balance between the governmental need to conduct criminal investigations efficiently and the rights of minors protected under our criminal justice system. The balance in this case weighs strongly in favor of preserving the rights of the juvenile. In view of the above, the government's motion is DENIED.
SO ORDERED
In San Juan, Puerto Rico, this 20th day of March, 2003.