Ellen SCHALL, Commissioner of New York City Department of Juvenile Justice v. Gregory MARTIN et al. Robert ABRAMS, Attorney General of New York v. Gregory MARTIN et al.

Section 320.5(3)(b) of the New York Family Court Act authorizes pretrial detention of an accused juvenile delinquent based on a finding that there is a "serious risk" that the child "may before the return date commit an act which if committed by an adult would constitute a crime."1 Appellees brought suit on behalf of a class of all juveniles detained pursuant to that provision.2 The District Court struck down § 320.5(3)(b) as permitting detention without due process of law and ordered the immediate release of all class members. United States ex rel. Martin v. Strasburg, 513 F.Supp. 691 (SDNY1981). The Court of Appeals for the Second Circuit affirmed, holding the provision "unconstitutional as to all juveniles" because the statute is administered in such a way that "the detention period serves as punishment imposed without proof of guilt established according to the requisite constitutional standard." Martin v. Strasburg, 689 F.2d 365, 373-374 (1982). We noted probable jurisdiction, 460 U.S. 1079, 103 S.Ct. 1765, 76 L.Ed.2d 340 (1983),3 and now reverse. We conclude that preventive detention under the FCA serves a legitimate state objective, and that the procedural protections afforded pretrial detainees by the New York statute satisfy the requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

* Appellee Gregory Martin was arrested on December 13, 1977, and charged with first-degree robbery, second-degree assault, and criminal possession of a weapon based on an incident in which he, with two others, allegedly hit a youth on the head with a loaded gun and stole his jacket and sneakers. See petitioners' Exhibit 1b. Martin had possession of the gun when he was arrested. He was 14 years old at the time and, therefore, came within the jurisdiction of New York's Family Court.4 The incident occurred at 11:30 at night, and Martin lied to the police about where and with whom he lived. He was consequently detained overnight.5

A petition of delinquency was filed,6 and Martin made his "initial appearance" in Family Court on December 14th, accompanied by his grandmother.7 The Family Court Judge, citing the possession of the loaded weapon, the false address given to the police, and the lateness of the hour, as evidencing a lack of supervision, ordered Martin detained under § 320.5(3)(b) (at that time § 739(a)(ii); see n. 2, supra). A probable cause hearing was held five days later, on December 19th, and probable cause was found to exist for all the crimes charged. At the factfinding hearing held December 27-29, Martin was found guilty on the robbery and criminal possession charges. He was adjudicated a delinquent and placed on two years' probation.8 He had been detained pursuant to § 320.5(3)(b), between the initial appearance and the completion of the factfinding hearing, for a total of 15 days.

Appellees Luis Rosario and Kenneth Morgan, both age 14, were also ordered detained pending their factfinding hearings. Rosario was charged with attempted first-degree robbery and second-degree assault for an incident in which he, with four others, allegedly tried to rob two men, putting a gun to the head of one of them and beating both about the head with sticks. See petitioners' Exhibit 2b. At the time of his initial appearance, on March 15, 1978, Rosario had another delinquency petition pending for knifing a student, and two prior petitions had been adjusted.9 Probable cause was found on March 21. On April 11, Rosario was released to his father, and the case was terminated without adjustment on September 25, 1978.

Kenneth Morgan was charged with attempted robbery and attempted grand larceny for an incident in which he and another boy allegedly tried to steal money from a 14-year-old girl and her brother by threatening to blow their heads off and grabbing them to search their pockets. See petitioners' Exhibit 3b. Morgan, like Rosario, was on release status on another petition (for robbery and criminal possession of stolen property) at the time of his initial appearance on March 27, 1978. He had been arrested four previous times, and his mother refused to come to court because he had been in trouble so often she did not want him home. A probable-cause hearing was set for March 30, but was continued until April 4, when it was combined with a factfinding hearing. Morgan was found guilty of harassment and petit larceny and was ordered placed with the Department of Social Services for 18 months. He was detained a total of eight days between his initial appearance and the factfinding hearing.

On December 21, 1977, while still in preventive detention pending his factfinding hearing, Gregory Martin instituted a habeas corpus class action on behalf of "those persons who are, or during the pendency of this action will be, preventively detained pursuant to" § 320.5(3)(b) of the FCA. Rosario and Morgan were subsequently added as additional named plaintiffs. These three class representatives sought a declaratory judgment that § 320.5(3)(b) violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

In an unpublished opinion, the District Court certified the class. App. 20-32.10 The court also held that appellees were not required to exhaust their state remedies before resorting to federal habeas because the highest state court had already rejected an identical challenge to the juvenile preventive detention statute. See People ex rel. Wayburn v. Schupf, 39 N.Y.2d 682, 385 N.Y.S.2d 518, 350 N.E.2d 906 (1976). Exhaustion of state remedies, therefore, would be "an exercise in futility." App. 26.

At trial, appellees offered in evidence the case histories of 34 members of the class, including the three named petitioners. Both parties presented some general statistics on the relation between pretrial detention and ultimate disposition. In addition, there was testimony concerning juvenile proceedings from a number of witnesses, including a legal aid attorney specializing in juvenile cases, a probation supervisor, a child psychologist, and a Family Court Judge. On the basis of this evidence, the District Court rejected the equal protection challenge as "insubstantial,"11 but agreed with appellees that pretrial detention under the FCA violates due process.12 The court ordered that "all class members in custody pursuant to Family Court Act Section [320.5(3)(b) ] shall be released forthwith." Id., at 93.

The Court of Appeals affirmed. After reviewing the trial record, the court opined that "the vast majority of juveniles detained under [§ 320.5(3)(b) ] either have their petitions dismissed before an adjudication of delinquency or are released after adjudication." 689 F.2d, at 369. The court concluded from that fact that § 320.5(3)(b) "is utilized principally, not for preventive purposes, but to impose punishment for unadjudicated criminal acts." Id., at 372. The early release of so many of those detained contradicts any asserted need for pretrial confinement to protect the community. The court therefore concluded that § 320.5(3)(b) must be declared unconstitutional as to all juveniles. Individual litigation would be a practical impossibility because the periods of detention are so short that the litigation is mooted before the merits are determined.13

There is no doubt that the Due Process Clause is applicable in juvenile proceedings. "The problem," we have stressed, "is to ascertain the precise impact of the due process requirement upon such proceedings." In re Gault, 387 U.S. 1, 13-14, 87 S.Ct. 1428, 1436-1437, 18 L.Ed.2d 527 (1967). We have held that certain basic constitutional protections enjoyed by adults accused of crimes also apply to juveniles. See Id., at 31-57, 87 S.Ct., at 1445-1459 (notice of charges, right to counsel, privilege against self-incrimination, right to confrontation and cross-examination); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (proof beyond a reasonable doubt); Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975) (double jeopardy). But the Constitution does not mandate elimination of all differences in the treatment of juveniles. See, e.g., McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971) (no right to jury trial). The State has "a parens patriae interest in preserving and promoting the welfare of the child," Santosky v. Kramer, 455 U.S. 745, 766, 102 S.Ct. 1388, 1401, 71 L.Ed.2d 599 (1982), which makes a juvenile proceeding fundamentally different from an adult criminal trial. We have tried, therefore, to strike a balance—to respect the "informality" and "flexibility" that characterize juvenile proceedings, In re Winship, supra, 397 U.S., at 366, 90 S.Ct., at 1073, and yet to ensure that such proceedings comport with the "fundamental fairness" demanded by the Due Process Clause. Breed v. Jones, supra, 421 U.S., at 531, 95 S.Ct., at 1786; McKeiver, supra, 403 U.S., at 543, 91 S.Ct., at 1985 (plurality opinion).

The statutory provision at issue in these cases, § 320.5(3)(b), permits a brief pretrial detention based on a finding of a "serious risk" that an arrested juvenile may commit a crime before his return date. The question before us is whether preventive detention of juveniles pursuant to § 320.5(3)(b) is compatible with the "fundamental fairness" required by due process. Two separate inquiries are necessary to answer this question. First, does preventive detention under the New York statute serve a legitimate state objective? See Bell v. Wolfish, 441 U.S. 520, 534, n. 15, 99 S.Ct. 1861, 1871 n. 15, 60 L.Ed.2d 447 (1979); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644 (1963). And, second, are the procedural safeguards contained in the FCA adequate to authorize the pretrial detention of at least some juveniles charged with crimes? See Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976); Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 863, 43 L.Ed.2d 54 (1975).

Preventive detention under the FCA is purportedly designed to protect the child and society from the potential consequences of his criminal acts. People ex rel. Wayburn v. Schupf, 39 N.Y.2d at 689-690, 385 N.Y.S.2d, at 521-522, 350 N.E.2d, at 910. When making any detention decision, the Family Court judge is specifically directed to consider the needs and best interests of the juvenile as well as the need for the protection of the community. FCA § 301.1; In re Craig S., 57 App.Div.2d 761, 394 N.Y.S.2d 200 (1977). In Bell v. Wolfish, supra, at 534, n. 15, 99 S.Ct., at 1871 n. 15, we left open the question whether any governmental objective other than ensuring a detainee's presence at trial may constitutionally justify pretrial detention. As an initial matter, therefore, we must decide whether, in the context of the juvenile system, the combined interest in protecting both the community and the juvenile himself from the consequences of future criminal conduct is sufficient to justify such detention.

The "legitimate and compelling state interest" in protecting the community from crime cannot be doubted. De Veau v. Braisted, 363 U.S. 144, 155, 80 S.Ct. 1146, 1152, 4 L.Ed.2d 1109 (1960). See also Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). We have stressed before that crime prevention is "a weighty social objective," Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979), and this interest persists undiluted in the juvenile context. See In re Gault, supra, at 20, n. 26, 87 S.Ct. 1440, n. 26, 18 L.Ed.2d 527. The harm suffered by the victim of a crime is not dependent upon the age of the perpetrator.14 And the harm to society generally may even be greater in this context given the high rate of recidivism among juveniles. In re Gault, supra, at 22, 87 U.S., at 22, 87 S.Ct., at 1440.

The juvenile's countervailing interest in freedom from institutional restraints, even for the brief time involved here, is undoubtedly substantial as well. See In re Gault, supra, at 27, 87 S.Ct., at 1443. But that interest must be qualified by the recognition that juveniles, unlike adults, are always in some form of custody. Lehman v. Lycoming County Children's Services, 458 U.S. 502, 510-511, 102 S.Ct. 3231, 3237-3238, 73 L.Ed.2d 928 (1982); In re Gault, supra, 387 U.S., at 17, 87 S.Ct., at 1438. Children, by definition, are not assumed to have the capacity to take care of themselves. They are assumed to be subject to the control of their parents, and if parental control falters, the State must play its part as parens patriae. See State v. Gleason, 404 A.2d 573, 580 (Me.1979); People ex rel. Wayburn v. Schupf, supra, at 690, 385 N.Y.S.2d, at 522, 350 N.E.2d, at 910; Baker v. Smith, 477 S.W.2d 149, 150-151 (Ky.1971). In this respect, the juvenile's liberty interest may, in appropriate circumstances, be subordinated to the State's "parens patriae interest in preserving and promoting the welfare of the child." Santosky v. Kramer, supra, at 766, 102 S.Ct., at 1401, 71 L.Ed.2d 599.

The New York Court of Appeals, in upholding the statute at issue here, stressed at some length "the desirability of protecting the juvenile from his own folly." People ex rel. Wayburn v. Schupf, supra, at 688-689, 385 N.Y.S.2d, at 520-521, 350 N.E.2d, at 909.15 Society has a legitimate interest in protecting a juvenile from the consequences of his criminal activity—both from potential physical injury which may be suffered when a victim fights back or a policeman attempts to make an arrest and from the downward spiral of criminal activity into which peer pressure may lead the child. See L.O.W. v. District Court of Arapahoe, 623 P.2d 1253, 1258-1259 (Colo.1981); Morris v. D'Amario, 416 A.2d 137, 140 (R.I.1980). See also Eddings v. Oklahoma, 455 U.S. 104, 115, 102 S.Ct. 869, 876, 71 L.Ed.2d 1 (1982) (minority "is a time and condition of life when a person may be most susceptible to influence and to psychological damage"); Bellotti v. Baird, 443 U.S. 622, 635, 99 S.Ct. 3035, 3044, 61 L.Ed.2d 797 (1979) (juveniles "often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them").

The substantiality and legitimacy of the state interests underlying this statute are confirmed by the widespread use and judicial acceptance of preventive detention for juveniles. Every State, as well as the United States in the District of Columbia, permits preventive detention of juveniles accused of crime.16 A number of model juvenile justice Acts also contain provisions permitting preventive detention.17 And the courts of eight States, including the New York Court of Appeals, have upheld their statutes with specific reference to protecting the juvenile and the community from harmful pretrial conduct, including pretrial crime. L.O.W. v. District Court of Arapahoe, supra, at 1258-1259; Morris v. D'Amario, at 139-140; State v. Gleason, 404 A.2d, at 583; Pauley v. Gross, 1 Kan.App.2d 736, 738-740, 574 P.2d 234, 237-238 (1977); People ex rel. Wayburn v. Schupf, 39 N.Y.2d, at 688-689, 385 N.Y.S.2d, at 520-521, 350 N.E.2d, at 909-910; Aubrey v. Gadbois, 50 Cal.App.3d 470, 472, 123 Cal.Rptr. 365, 366 (1975); Baker v. Smith, 477 S.W.2d, at 150-151; Commonwealth ex rel. Sprowal v. Hendrick, 438 Pa. 435, 438-439, 265 A.2d 348, 349-350 (1970).

"The fact that a practice is followed by a large number of states is not conclusive in a decision as to whether that practice accords with due process, but it is plainly worth considering in determining whether the practice 'offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' Snyder v. Massachusetts, 291 U.S. 97, 105 [54 S.Ct. 330, 332, 78 L.Ed. 674] (1934)." Leland v. Oregon, 343 U.S. 790, 798, 72 S.Ct. 1002, 1007, 96 L.Ed. 1302 (1952). In light of the uniform legislative judgment that pretrial detention of juveniles properly promotes the interests both of society and the juvenile, we conclude that the practice serves a legitimate regulatory purpose compatible with the "fundamental fairness" demanded by the Due Process Clause in juvenile proceedings. Cf. McKeiver v. Pennsylvania, 403 U.S., at 548, 91 S.Ct., at 1987 (plurality opinion).18

More fundamentally, this sort of attack on a criminal statute must be made on a case-by-case basis. United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960). The Court will not sift through the entire class to determine whether the statute was constitutionally applied in each case. And, outside the limited First Amendment context, a criminal statute may not be attacked as overbroad. See New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). Of course, the mere invocation of a legitimate purpose will not justify particular restrictions and conditions of confinement amounting to punishment. It is axiomatic that "[d]ue process requires that a pretrial detainee not be punished." Bell v. Wolfish, 441 U.S., at 535, n. 16, 99 S.Ct., at 1872, n. 16. Even given, therefore, that pretrial detention may serve legitimate regulatory purposes, it is still necessary to determine whether the terms and conditions of confinement under § 320.5(3)(b) are in fact compatible with those purposes. Kennedy v. Mendoza-Martinez, 372 U.S., at 168-169, 83 S.Ct., at 567-568. "A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose." Bell v. Wolfish, supra, 441 U.S., at 538, 99 S.Ct., at 1873. Absent a showing of an express intent to punish on the part of the State, that determination generally will turn on "whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it]." Kennedy v. Mendoza-Martinez, supra, 372 U.S., at 168-189, 83 S.Ct., at 567-578. See Bell v. Wolfish, supra, 441 U.S., at 538, 99 S.Ct., at 1874; Flemming v. Nestor, 363 U.S. 603, 613-614, 80 S.Ct. 1367, 1373-1375, 4 L.Ed.2d 1435 (1960).

There is no indication in the statute itself that preventive detention is used or intended as a punishment. First of all, the detention is strictly limited in time. If a juvenile is detained at his initial appearance and has denied the charges against him, he is entitled to a probable-cause hearing to be held not more than three days after the conclusion of the initial appearance or four days after the filing of the petition, whichever is sooner. FCA § 325.1(2).19 If the Family Court judge finds probable cause, he must also determine whether continued detention is necessary pursuant to § 320.5(3)(b). § 325.3(3).

Detained juveniles are also entitled to an expedited factfinding hearing. If the juvenile is charged with one of a limited number of designated felonies, the factfinding hearing must be scheduled to commence not more than 14 days after the conclusion of the initial appearance. § 340.1. If the juvenile is charged with a lesser offense, then the factfinding hearing must be held not more than three days after the initial appearance.20 In the latter case, since the times for the probable-cause hearing and the factfinding hearing coincide, the two hearings are merged.

Thus, the maximum possible detention under § 320.5(3)(b) of a youth accused of a serious crime, assuming a 3-day extension of the factfinding hearing for good cause shown, is 17 days. The maximum detention for less serious crimes, again assuming a 3-day extension for good cause shown, is six days. These time frames seem suited to the limited purpose of providing the youth with a controlled environment and separating him from improper influences pending the speedy disposition of his case.

The conditions of confinement also appear to reflect the regulatory purposes relied upon by the State. When a juvenile is remanded after his initial appearance, he cannot, absent exceptional circumstances, be sent to a prison or lockup where he would be exposed to adult criminals. FCA § 304.1(2). Instead, the child is screened by an "assessment unit" of the Department of Juvenile Justice. Testimony of Mr. Kelly (Deputy Commissioner of Operations, New York City Department of Juvenile Justice), App. 286-287. The assessment unit places the child in either nonsecure or secure detention. Nonsecure detention involves an open facility in the community, a sort of "halfway house," without locks, bars, or security officers where the child receives schooling and counseling and has access to recreational facilities. Id., at 285; Testimony of Mr. Benjamin, id., at 149-150.

Secure detention is more restrictive, but it is still consistent with the regulatory and parens patriae objectives relied upon by the State. Children are assigned to separate dorms based on age, size, and behavior. They wear street clothes provided by the institution and partake in educational and recreational programs and counseling sessions run by trained social workers. Misbehavior is punished by confinement to one's room. See Testimony of Mr. Kelly, id., at 292-297. We cannot conclude from this record that the controlled environment briefly imposed by the State on juveniles in secure pretrial detention "is imposed for the purpose of punishment" rather than as "an incident of some other legitimate governmental purpose." Bell v. Wolfish, 441 U.S., at 538, 99 S.Ct., at 1873.

The Court of Appeals, of course, did conclude that the underlying purpose of § 320.5(3)(b) is punitive rather than regulatory. But the court did not dispute that preventive detention might serve legitimate regulatory purposes or that the terms and conditions of pretrial confinement in New York are compatible with those purposes. Rather, the court invalidated a significant aspect of New York's juvenile justice system based solely on some case histories and a statistical study which appeared to show that "the vast majority of juveniles detained under [§ 320.5(3)(b) ] either have their petitions dismissed before an adjudication of delinquency or are released after adjudication." 689 F.2d, at 369. The court assumed that dismissal of a petition or failure to confine a juvenile at the dispositional hearing belied the need to detain him prior to fact-finding and that, therefore, the pretrial detention constituted punishment. Id., at 373. Since punishment imposed without a prior adjudication of guilt is per se illegitimate, the Court of Appeals concluded that no juveniles could be held pursuant to § 320.5(3)(b).

There are some obvious flaws in the statistics and case histories relied upon by the lower court.21 But even assuming it to be the case that "by far the greater number of juveniles incarcerated under [§ 320.5(3)(b) ] will never be confined as a consequence of a disposition imposed after an adjudication of delinquency," 689 F.2d, at 371-372, we find that to be an insufficient ground for upsetting the widely shared legislative judgment that preventive detention serves an important and legitimate function in the juvenile justice system. We are unpersuaded by the Court of Appeals' rather cavalier equation of detentions that do not lead to continued confinement after an adjudication of guilt and "wrongful" or "punitive" pretrial detentions.

Pretrial detention need not be considered punitive merely because a juvenile is subsequently discharged subject to conditions or put on probation. In fact, such actions reinforce the original finding that close supervision of the juvenile is required. Lenient but supervised disposition is in keeping with the Act's purpose to promote the welfare and development of the child.22 As the New York Court of Appeals noted:

"It should surprise no one that caution and concern for both the juvenile and society may indicate the more conservative decision to detain at the very outset, whereas the later development of very much more relevant information may prove that while a finding of delinquency was warranted, placement may not be indicated." People ex rel. Wayburn v. Schupf, 39 N.Y.2d, at 690, 385 N.Y.S.2d, at 522, 350 N.E.2d, at 910.

Even when a case is terminated prior to fact finding, it does not follow that the decision to detain the juvenile pursuant to § 320.5(3)(b) amounted to a due process violation. A delinquency petition may be dismissed for any number of reasons collateral to its merits, such as the failure of a witness to testify. The Family Court judge cannot be expected to anticipate such developments at the initial hearing. He makes his decision based on the information available to him at that time, and the propriety of the decision must be judged in that light. Consequently, the final disposition of a case is "largely irrelevant" to the legality of a pretrial detention. Baker v. McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979).

It may be, of course, that in some circumstances detention of a juvenile would not pass constitutional muster. But the validity of those detentions must be determined on a case-by-case basis. Section 320.5(3)(b) is not invalid "on its face" by reason of the ambiguous statistics and case histories relied upon by the court below.23 We find no justification for the conclusion that, contrary to the express language of the statute and the judgment of the highest state court, § 320.5(3)(b) is a punitive rather than a regulatory measure. Preventive detention under the FCA serves the legitimate state objective, held in common with every State in the country, of protecting both the juvenile and society from the hazards of pretrial crime.

Given the legitimacy of the State's interest in preventive detention, and the nonpunitive nature of that detention, the remaining question is whether the procedures afforded juveniles detained prior to fact-finding provide sufficient protection against erroneous and unnecessary deprivations of liberty. See Mathews v. Eldridge, 424 U.S., at 335, 96 S.Ct., at 903, 47 L.Ed.2d 18.24 In Gerstein v. Pugh, 420 U.S., at 114, 95 S.Ct., at 863, 43 L.Ed.2d 54, we held that a judicial determination of probable cause is a prerequisite to any extended restraint on the liberty of an adult accused of crime. We did not, however, mandate a specific time-table. Nor did we require the "full panoply of adversary safeguards—counsel, confrontation, cross-examination, and compulsory process for witnesses." Id., at 119, 95 S.Ct., at 866. Instead, we recognized "the desirability of flexibility and experimentation by the States." Id., at 123, 95 S.Ct. at 868. Gerstein arose under the Fourth Amendment, but the same concern with "flexibility" and "informality," while yet ensuring adequate predetention procedures, is present in this context. In re Winship, 397 U.S., at 366, 90 S.Ct., at 1074, 25 L.Ed.2d 368; Kent v. United States, 383 U.S. 541, 554, 86 S.Ct. 1045, 1054, 16 L.Ed.2d 84 (1966).

In many respects, the FCA provides far more predetention protection for juveniles than we found to be constitutionally required for a probable-cause determination for adults in Gerstein. The initial appearance is informal, but the accused juvenile is given full notice of the charges against him and a complete stenographic record is kept of the hearing. See 513 F.Supp., at 702. The juvenile appears accompanied by his parent or guardian.25 He is first informed of his rights, including the right to remain silent and the right to be represented by counsel chosen by him or by a law guardian assigned by the court. FCA § 320.3. The initial appearance may be adjourned for no longer than 72 hours or until the next court day, whichever is sooner, to enable an appointed law guardian or other counsel to appear before the court. § 320.2(3). When his counsel is present, the juvenile is informed of the charges against him and furnished with a copy of the delinquency petition. § 320.4(1). A representative from the presentment agency appears in support of the petition.

The nonhearsay allegations in the delinquency petition and supporting depositions must establish probable cause to believe the juvenile committed the offense. Although the Family Court judge is not required to make a finding of probable cause at the initial appearance, the youth may challenge the sufficiency of the petition on that ground. FCA § 315.1. Thus, the juvenile may oppose any recommended detention by arguing that there is not probable cause to believe he committed the offense or offenses with which he is charged. If the petition is not dismissed, the juvenile is given an opportunity to admit or deny the charges. § 321.1.26

At the conclusion of the initial appearance, the presentment agency makes a recommendation regarding detention. A probation officer reports on the juvenile's record, including other prior and current Family Court and probation contacts, as well as relevant information concerning home life, school attendance, and any special medical or developmental problems. He concludes by offering his agency's recommendation on detention. Opposing counsel, the juvenile's parents, and the juvenile himself may all speak on his behalf and challenge any information or recommendation. If the judge does decide to detain the juvenile under § 320.5(3)(b), he must state on the record the facts and reasons for the detention.27

As noted, a detained juvenile is entitled to a formal, adversarial probable-cause hearing within three days of his initial appearance, with one 3-day extension possible for good cause shown.28 The burden at this hearing is on the presentment agency to call witnesses and offer evidence in support of the charges. § 325.2. Testimony is under oath and subject to cross-examination. Ibid. The accused juvenile may call witnesses and offer evidence in his own behalf. If the court finds probable cause, the court must again decide whether continued detention is necessary under § 320.5(3)(b). Again, the facts and reasons for the detention must be stated on the record.

In sum, notice, a hearing, and a statement of facts and reasons are given prior to any detention under § 320.5(3)(b). A formal probable-cause hearing is then held within a short while thereafter, if the factfinding hearing is not itself scheduled within three days. These flexible procedures have been found constitutionally adequate under the Fourth Amendment, see Gerstein v. Pugh, and under the Due Process Clause, see Kent v. United States, supra, 557, 86 S.Ct., at 1055, 16 L.Ed.2d 84. Appellees have failed to note any additional procedures that would significantly improve the accuracy of the determination without unduly impinging on the achievement of legitimate state purposes.29

Appellees argue, however, that the risk of erroneous and unnecessary detentions is too high despite these procedures because the standard for detention is fatally vague. Detention under § 320.5(3)(b) is based on a finding that there is a "serious risk" that the juvenile, if released, would commit a crime prior to his next court appearance. We have already seen that detention of juveniles on that ground serves legitimate regulatory purposes. But appellees claim, and the District Court agreed, that it is virtually impossible to predict future criminal conduct with any degree of accuracy. Moreover, they say, the statutory standard fails to channel the discretion of the Family Court judge by specifying the factors on which he should rely in making that prediction. The procedural protections noted above are thus, in their view, unavailing because the ultimate decision is intrinsically arbitrary and uncontrolled.

Our cases indicate, however, that from a legal point of view there is nothing inherently unattainable about a prediction of future criminal conduct. Such a judgment forms an important element in many decisions,30 and we have specifically rejected the contention, based on the same sort of sociological data relied upon by appellees and the District Court, "that it is impossible to predict future behavior and that the question is so vague as to be meaningless." Jurek v. Texas, 428 U.S. 262, 274, 96 S.Ct. 2950, 2957, 49 L.Ed.2d 929 (1976) (opinion of Stewart, POWELL and STEVENS, JJ.); id., at 279, 96 S.Ct., at 2959 (WHITE, J., concurring in judgment).

We have also recognized that a prediction of future criminal conduct is "an experienced prediction based on a host of variables" which cannot be readily codified. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 16, 99 S.Ct. 2100, 2108, 60 L.Ed.2d 668 (1979). Judge Quinones of the Family Court testified at trial that he and his colleagues make a determination under § 320.5(3)(b) based on numerous factors including the nature and seriousness of the charges; whether the charges are likely to be proved at trial; the juvenile's prior record; the adequacy and effectiveness of his home supervision; his school situation, if known; the time of day of the alleged crime as evidence of its seriousness and a possible lack of parental control; and any special circumstances that might be brought to his attention by the probation officer, the child's attorney, or any parents, relatives, or other responsible persons accompanying the child. Testimony of Judge Quinones, App. 254-267. The decision is based on as much information as can reasonably be obtained at the initial appearance. Ibid.

Given the right to a hearing, to counsel, and to a statement of reasons, there is no reason that the specific factors upon which the Family Court judge might rely must be specified in the statute. As the New York Court of Appeals concluded, People ex rel. Wayburn v. Schupf, 39 N.Y.2d, at 690, 385 N.Y.S.2d, at 522, 350 N.E.2d, at 910, "to a very real extent Family Court must exercise a substitute parental control for which there can be no particularized criteria." There is also no reason, we should add, for a federal court to assume that a state court judge will not strive to apply state law as conscientiously as possible. Sumner v. Mata, 449 U.S. 539, 549, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981).

It is worth adding that the Court of Appeals for the Second Circuit was mistaken in its conclusion that "[i]ndividual litigation . . . is a practical impossibility because the periods of detention are so short that the litigation is mooted before the merits are determined." 689 F.2d, at 373. In fact, one of the juveniles in the very case histories upon which the court relied was released from pretrial detention on a writ of habeas corpus issued by the State Supreme Court. New York courts also have adopted a liberal view of the doctrine of "capable of repetition, yet evading review" precisely in order to ensure that pretrial detention orders are not unreviewable. In People ex rel. Wayburn v. Schupf, supra, at 686, 385 N.Y.S.2d, at 520, 350 N.E.2d, at 908, the court declined to dismiss an appeal from the grant of a writ of habeas corpus despite the technical mootness of the case.

"Because the situation is likely to recur . . . and the substantial issue may otherwise never be reached (in view of the predictably recurring happenstance that, however expeditiously an appeal might be prosecuted, fact-finding and dispositional hearings normally will have been held and a disposition made before the appeal could reach us), . . . we decline to dismiss [the appeal] on the ground of mootness."

The required statement of facts and reasons justifying the detention and the stenographic record of the initial appearance will provide a basis for the review of individual cases. Pretrial detention orders in New York may be reviewed by writ of habeas corpus brought in State Supreme Court. And the judgment of that court is appealable as of right and may be taken directly to the Court of Appeals if a constitutional question is presented. N.Y.Civ.Prac.Law § 5601(b)(2) (McKinney 1978). Permissive appeal from a Family Court order may also be had to the Appellate Division. FCA § 365.2. Or a motion for reconsideration may be directed to the Family Court judge. § 355.1(1)(b). These postdetention procedures provide a sufficient mechanism for correcting on a case-by-case basis any erroneous detentions ordered under § 320.5(3). Such procedures may well flesh out the standards specified in the statute.

The dissent would apparently have us strike down New York's preventive detention statute on two grounds: first, because the preventive detention of juveniles constitutes poor public policy, with the balance of harms outweighing any positive benefits either to society or to the juveniles themselves, post, at 290-291,3083, and, second, because the statute could have been better drafted to improve the quality of the decisionmaking process, post, at 304-306. But it is worth recalling that we are neither a legislature charged with formulating public policy nor an American Bar Association committee charged with drafting a model statute. The question before us today is solely whether the preventive detention system chosen by the State of New York and applied by the New York Family Court comports with constitutional standards. Given the regulatory purpose for the detention and the procedural protections that precede its imposition, we conclude that § 320.5(3)(b) of the New York FCA is not invalid under the Due Process Clause of the Fourteenth Amendment.

Reversed.

Justice MARSHALL, with whom Justice BRENNAN and Justice STEVENS join, dissenting.

The New York Family Court Act governs the treatment of persons between 7 and 16 years of age who are alleged to have committed acts that, if committed by adults, would constitute crimes.1 The Act contains two provisions that authorize the detention of juveniles arrested for offenses covered by the Act2 for up to 17 days pending adjudication of their guilt.3 Section 320.5(3)(a) empowers a judge of the New York Family Court to order detention of a juvenile if he finds "there is a substantial probability that [the juvenile] will not appear in court on the return date." Section 320.5(3)(b), the provision at issue in these cases, authorizes detention if the judge finds "there is a serious risk [the juvenile] may before the return date commit an act which if committed by an adult would constitute a crime."4

There are few limitations on § 320.5(3)(b). Detention need not be predicated on a finding that there is probable cause to believe the child committed the offense for which he was arrested. The provision applies to all juveniles, regardless of their prior records or the severity of the offenses of which they are accused. The provision is not limited to the prevention of dangerous crimes; a prediction that a juvenile if released may commit a minor misdemeanor is sufficient to justify his detention. Aside from the reference to "serious risk," the requisite likelihood that the juvenile will misbehave before his trial is not specified by the statute.

The Court today holds that preventive detention of a juvenile pursuant to § 320.5(3)(b) does not violate the Due Process Clause. Two rulings are essential to the Court's decision: that the provision promotes legitimate government objectives important enough to justify the abridgment of the detained juveniles' liberty interests, ante, at 2415; and that the provision incorporates procedural safeguards sufficient to prevent unnecessary or arbitrary impairment of constitutionally protected rights, ante, at 2417, 2418. Because I disagree with both of those rulings, I dissent.

* The District Court made detailed findings, which the Court of Appeals left undisturbed, regarding the manner in which § 320.5(3)(b) is applied in practice. Unless clearly erroneous, those findings are binding upon us, see Fed.Rule Civ.Proc. 52(a), and must guide our analysis of the constitutional questions presented by these cases.

The first step in the process that leads to detention under § 320.5(3)(b) is known as "probation intake." A juvenile may arrive at intake by one of three routes: he may be brought there directly by an arresting officer; he may be detained for a brief period after his arrest and then taken to intake; he may be released upon arrest and directed to appear at a designated time. United States ex rel. Martin v. Strasburg, 513 F.Supp. 691, 701 (S.D.N.Y.1981). The heart of the intake procedure is a 10-to-40-minute interview of the juvenile, the arresting officer, and sometimes the juvenile's parent or guardian. The objectives of the probation officer conducting the interview are to determine the nature of the offense the child may have committed and to obtain some background information on him. Ibid.

On the basis of the information derived from the interview and from an examination of the juvenile's record, the probation officer decides whether the case should be disposed of informally ("adjusted") or whether it should be referred to the Family Court. If the latter, the officer makes an additional recommendation regarding whether the juvenile should be detained. "There do not appear to be any governing criteria which must be followed by the probation officer in choosing between proposing detention and parole. . . ." Ibid.

The actual decision whether to detain a juvenile under § 320.5(3)(b) is made by a Family Court judge at what is called an "initial appearance"—a brief hearing resembling an arraignment.5 Id., at 702. The information on which the judge makes his determination is very limited. He has before him a "petition for delinquency" prepared by a state agency, charging the juvenile with an offense, accompanied with one or more affidavits attesting to the juvenile's involvement. Ordinarily the judge has in addition the written report and recommendation of the probation officer. However, the probation officer who prepared the report rarely attends the hearing. Ibid. Nor is the complainant likely to appear. Consequently, "[o]ften there is no one present with personal knowledge of what happened." Ibid.

In the typical case, the judge appoints counsel for the juvenile at the time his case is called. Thus, the lawyer has no opportunity to make an independent inquiry into the juvenile's background or character, and has only a few minutes to prepare arguments on the child's behalf. Id., at 702, 708. The judge ordinarily does not interview the juvenile, id., at 708, makes no inquiry into the truth of allegations in the petition, id., at 702, and does not determine whether there is probable cause to believe the juvenile committed the offense.6 The typical hearing lasts between 5 and 15 minutes, and the judge renders his decision immediately afterward. Ibid.

Neither the statute nor any other body of rules guides the efforts of the judge to determine whether a given juvenile is likely to commit a crime before his trial. In making detention decisions, "each judge must rely on his own subjective judgment, based on the limited information available to him at court intake and whatever personal standards he himself has developed in exercising his discretionary authority under the statute." Ibid. Family Court judges are not provided information regarding the behavior of juveniles over whose cases they have presided, so a judge has no way of refining the standards he employs in making detention decisions. Id., at 712.

After examining a study of a sample of 34 cases in which juveniles were detained under § 320.5(3)(b)7 along with various statistical studies of pretrial detention of juveniles in New York,8 the District Court made findings regarding the circumstances in which the provision habitually is invoked. Three of those findings are especially germane to appellees' challenge to the statute. First, a substantial number of "first offenders" are detained pursuant to § 320.5(3)(b). For example, at least 5 of the 34 juveniles in the sample had no prior contact with the Family Court before being detained and at least 16 had no prior adjudications of delinquency. Id., at 695-700.9 Second, many juveniles are released—for periods ranging from five days to several weeks—after their arrests and are then detained under § 320.5(3)(b), despite the absence of any evidence of misconduct during the time between their arrests and "initial appearances." Sixteen of the thirty-four cases in the sample fit this pattern. Id., at 705, 713-714. Third, "the overwhelming majority" of the juveniles detained under § 320.5(3)(b) are released either before or immediately after their trials, either unconditionally or on parole. Id., at 705. At least 23 of the juveniles in the sample fell into this category. Martin v. Strasburg, 689 F.2d 365, 369, n. 19 (CA2 1982); see 513 F.Supp., at 695-700.

Finally, the District Court made a few significant findings concerning the conditions associated with "secure detention" pursuant to § 320.5(3)(b).10 In a "secure facility," "[t]he juveniles are subjected to strip-searches, wear institutional clothing and follow institutional regimen. At Spofford [Juvenile Detention Center], which is a secure facility, some juveniles who have had dispositional determinations and were awaiting placement (long term care) commingle with those in pretrial detention (short term care)." Id., at 695, n. 5.

It is against the backdrop of these findings that the contentions of the parties must be examined.

As the majority concedes, ante, at 263, the fact that § 320.5(3)(b) applies only to juveniles does not insulate the provision from review under the Due Process Clause. "[N]either the Fourteenth Amendment nor the Bill of Rights is for adults alone." In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527 (1967). Examination of the provision must of course be informed by a recognition that juveniles have different needs and capacities than adults, see McKeiver v. Pennsylvania, 403 U.S. 528, 550, 91 S.Ct. 1976, 1988, 29 L.Ed.2d 647 (1971), but the provision still "must measure up to the essentials of due process and fair treatment," Kent v. United States, 383 U.S. 541, 562, 86 S.Ct. 1045, 1057, 16 L.Ed.2d 84 (1966).

To comport with "fundamental fairness," § 320.5(3)(b) must satisfy two requirements. First, it must advance goals commensurate with the burdens it imposes on constitutionally protected interests. Second, it must not punish the juveniles to whom it applies.

The majority only grudgingly and incompletely acknowledges the applicability of the first of these tests, but its grip on the cases before us is undeniable. It is manifest that § 320.5(3)(b) impinges upon fundamental rights. If the "liberty" protected by the Due Process Clause means anything, it means freedom from physical restraint. Ingraham v. Wright, 430 U.S. 651, 673-674, 97 S.Ct. 1401, 1413-1414, 51 L.Ed.2d 711 (1977); Board of Regents v. Roth, 408 U.S. 564, 572, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548 (1972). Only a very important government interest can justify deprivation of liberty in this basic sense.11

The majority seeks to evade the force of this principle by discounting the impact on a child of incarceration pursuant to § 320.5(3)(b). The curtailment of liberty consequent upon detention of a juvenile, the majority contends, is mitigated by the fact that "juveniles, unlike adults, are always in some form of custody." Ante, at 265. In any event, the majority argues, the conditions of confinement associated with "secure detention" under § 320.5(3)(b) are not unduly burdensome. Ante, at 271. These contentions enable the majority to suggest that § 320.5(3)(b) need only advance a "legitimate state objective" to satisfy the strictures of the Due Process Clause. Ante, at 256-257, 263-264, 274.12

The majority's arguments do not survive scrutiny. Its characterization of preventive detention as merely a transfer of custody from a parent or guardian to the State is difficult to take seriously. Surely there is a qualitative difference between imprisonment and the condition of being subject to the supervision and control of an adult who has one's best interests at heart. And the majority's depiction of the nature of confinement under § 320.5(3)(b) is insupportable on this record. As noted above, the District Court found that secure detention entails incarceration in a facility closely resembling a jail and that pretrial detainees are sometimes mixed with juveniles who have been found to be delinquent. Supra, at 287-288. Evidence adduced at trial reinforces these findings. For example, Judge Quinones, a Family Court Judge with eight years of experience, described the conditions of detention as follows:

"Then again, Juvenile Center, as much as we might try, is not the most pleasant place in the world. If you put them in detention, you are liable to be exposing these youngsters to all sorts of things. They are liable to be exposed to assault, they are liable to be exposed to sexual assaults. You are taking the risk of putting them together with a youngster that might be much worse than they, possibly might be, and it might have a bad effect in that respect." App. 270.

Many other observers of the circumstances of juvenile detention in New York have come to similar conclusions.13

In short, fairly viewed, pretrial detention of a juvenile pursuant to § 320.5(3)(b) gives rise to injuries comparable to those associated with imprisonment of an adult. In both situations, the detainee suffers stigmatization and severe limitation of his freedom of movement. See In re Winship, 397 U.S. 358, 367, 90 S.Ct. 1068, 1074, 25 L.Ed.2d 368 (1970); In re Gault, 387 U.S., at 27, 87 S.Ct., at 1443. Indeed, the impressionability of juveniles may make the experience of incarceration more injurious to them than to adults; all too quickly juveniles subjected to preventive detention come to see society at large as hostile and oppressive and to regard themselves as irremediably "delinquent."14 Such serious injuries to presumptively innocent persons—encompassing the curtailment of their constitutional rights to liberty—can be justified only by a weighty public interest that is substantially advanced by the statute.15

The applicability of the second of the two tests is admitted even by the majority. In Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 1872, 60 L.Ed.2d 447 (1979), the Court held that an adult may not be punished prior to determination that he is guilty of a crime.16 The majority concedes, as it must, that this principle applies to juveniles. Ante, at 264, 269. Thus, if the only purpose substantially advanced by § 320.5(3)(b) is punishment, the provision must be struck down.

For related reasons, § 320.5(3)(b) cannot satisfy either of the requirements discussed above that together define "fundamental fairness" in the context of pretrial detention.

Appellants and the majority contend that § 320.5(3)(b) advances a pair of intertwined government objectives: "protecting the community from crime," ante, at 264, and "protecting a juvenile from the consequences of his criminal activity," ante, at 266. More specifically, the majority argues that detaining a juvenile for a period of up to 17 days prior to his trial has two desirable effects: it protects society at large from the crimes he might have committed during that period if released; and it protects the juvenile himself "both from potential physical injury which may be suffered when a victim fights back or a policeman attempts to make an arrest and from the downward spiral of criminal activity into which peer pressure may lead the child." Ante, at 264-266.

Appellees and some amici argue that public purposes of this sort can never justify incarceration of a person who has not been adjudicated guilty of a crime, at least in the absence of a determination that there exists probable cause to believe he committed a criminal offense.17 We need not reach that categorial argument in these cases because, even if the purposes identified by the majority are conceded to be compelling, they are not sufficiently promoted by detention pursuant to § 320.5(3)(b) to justify the concomitant impairment of the juveniles' liberty interests.18 To state the case more precisely, two circumstances in combination render § 320.5(3)(b) invalid in toto: in the large majority of cases in which the provision is invoked, its asserted objectives are either not advanced at all or are only minimally promoted; and, as the provision is written and administered by the state courts, the cases in which its asserted ends are significantly advanced cannot practicably be distinguished from the cases in which they are not.

* Both of the courts below concluded that only occasionally and accidentally does pretrial detention of a juvenile under § 320.5(3)(b) prevent the commission of a crime. Three subsidiary findings undergird that conclusion. First, Family Court judges are incapable of determining which of the juveniles who appear before them would commit offenses before their trials if left at large and which would not. In part, this incapacity derives from the limitations of current knowledge concerning the dynamics of human behavior. On the basis of evidence adduced at trial, supplemented by a thorough review of the secondary literature, see 513 F.Supp., at 708-712, and nn. 31-32, the District Court found that "no diagnostic tools have as yet been devised which enable even the most highly trained criminologists to predict reliably which juveniles will engage in violent crime." Id., at 708. The evidence supportive of this finding is overwhelming.19 An independent impediment to identification of the defendants who would misbehave if released is the paucity of data available at an initial appearance. The judge must make his decision whether to detain a juvenile on the basis of a set of allegations regarding the child's alleged offense, a cursory review of his background and criminal record, and the recommendation of a probation officer who, in the typical case, has seen the child only once. Id., at 712. In view of this scarcity of relevant information, the District Court credited the testimony of appellees' expert witness, who "stated that he would be surprised if recommendations based on intake interviews were better than chance and assessed the judge's subjective prognosis about the probability of future crime as only 4% better than chance—virtually wholly unpredictable." Id., at 708.20

Second, § 320.5(3)(b) is not limited to classes of juveniles whose past conduct suggests that they are substantially more likely than average juveniles to misbehave in the immediate future. The provision authorizes the detention of persons arrested for trivial offenses21 and persons without any prior contacts with juvenile court. Even a finding that there is probable cause to believe a juvenile committed the offense with which he was charged is not a prerequisite to his detention. See supra, at 285, and n. 6.22

Third, the courts below concluded that circumstances surrounding most of the cases in which § 320.5(3)(b) has been invoked strongly suggest that the detainee would not have committed a crime during the period before his trial if he had been released. In a significant proportion of the cases, the juvenile had been released after his arrest and had not committed any reported crimes while at large, see supra, at 287; it is not apparent why a juvenile would be more likely to misbehave between his initial appearance and his trial than between his arrest and initial appearance. Even more telling is the fact that "the vast majority" of persons detained under § 320.5(3)(b) are released either before or immediately after their trials. 698 F.2d, at 369; see 513 F.Supp., at 705. The inference is powerful that most detainees, when examined more carefully than at their initial appearances, are deemed insufficiently dangerous to warrant further incarceration.23

The rarity with which invocation of § 320.5(3)(b) results in detention of a juvenile who otherwise would have committed a crime fatally undercuts the two public purposes assigned to the statute by the State and the majority. The argument that § 320.5(3)(b) serves "the State's 'parens patriae interest in preserving and promoting the welfare of the child,' " ante, at 265 (citation omitted), now appears particularly hollow. Most juveniles detained pursuant to the provision are not benefited thereby, because they would not have committed crimes if left to their own devices (and thus would not have been exposed to the risk of physical injury or the perils of the cycle of recidivism, see ante, at 266). On the contrary, these juveniles suffer several serious harms: deprivation of liberty and stigmatization as "delinquent" or "dangerous," as well as impairment of their ability to prepare their legal defenses.24 The benefits even to those few juveniles who would have committed crimes if released are not unalloyed; the gains to them are partially offset by the aforementioned injuries. In view of this configuration of benefits and harms, it is not surprising that Judge Quinones repudiated the suggestion that detention under § 320.5(3)(b) serves the interests of the detainees. App. 269-270.

The argument that § 320.5(3)(b) protects the welfare of the community fares little better. Certainly the public reaps no benefit from incarceration of the majority of the detainees who would not have committed any crimes had they been released. Prevention of the minor offenses that would have been committed by a small proportion of the persons detained confers only a slight benefit on the community.25 Only in occasional cases does incarceration of a juvenile pending his trial serve to prevent a crime of violence and thereby significantly promote the public interest. Such an infrequent and haphazard gain is insufficient to justify curtailment of the liberty interests of all the presumptively innocent juveniles who would have obeyed the law pending their trials had they been given the chance.26

The majority seeks to deflect appellees' attack on the constitutionality of § 320.5(3)(b) by contending that they have framed their argument too broadly. It is possible, the majority acknowledges, that "in some circumstances detention of a juvenile [pursuant to § 320.5(3)(b) ] would not pass constitutional muster. But the validity of those detentions must be determined on a case-by-case basis." Ante, at 273; see ante, at 268-269, n. 18. The majority thus implies that, even if the Due Process Clause is violated by most detentions under § 320.5(3)(b) because those detainees would not have committed crimes if released, the statute nevertheless is not invalid "on its face" because detention of those persons who would have committed a serious crime comports with the Constitution. Separation of the properly detained juveniles from the improperly detained juveniles must be achieved through "case-by-case" adjudication.

There are some obvious practical impediments to adoption of the majority's proposal. Because a juvenile may not be incarcerated under § 320.5(3)(b) for more than 17 days, it would be impracticable for a particular detainee to secure his freedom by challenging the constitutional basis of his detention; by the time the suit could be considered, it would have been rendered moot by the juvenile's release or long-term detention pursuant to a delinquency adjudication.27 Nor could an individual detainee avoid the problem of mootness by filing a suit for damages or for injunctive relief. This Court's declaration that § 320.5(3)(b) is not unconstitutional on its face would almost certainly preclude a finding that detention of a juvenile pursuant to the statute violated any clearly established constitutional rights; in the absence of such a finding all state officials would be immune from liability in damages, see Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). And, under current doctrine pertaining to the standing of an individual victim of allegedly unconstitutional conduct to obtain an injunction against repetition of that behavior, it is far from clear that an individual detainee would be able to obtain an equitable remedy. Compare INS v. Delgado, 466 U.S. 210, 217, n. 4, 104 S.Ct. 1758, 1763, n. 4, 80 L.Ed.2d 247 (1984), with Los Angeles v. Lyons, 461 U.S. 95, 105-106, 103 S.Ct. 1660, 1666-1667, 75 L.Ed.2d 675 (1983).

But even if these practical difficulties could be surmounted, the majority's proposal would be inadequate. Precisely because of the unreliability of any determination whether a particular juvenile is likely to commit a crime between his arrest and trial, see supra, at 293-294, no individual detainee would be able to demonstrate that he would have abided by the law had he been released. In other words, no configuration of circumstances would enable a juvenile to establish that he fell into the category of persons unconstitutionally detained rather than the category constitutionally detained.28 Thus, to protect the rights of the majority of juveniles whose incarceration advances no legitimate state interest, § 320.5(3)(b) must be held unconstitutional "on its face."

The findings reviewed in the preceding section lend credence to the conclusion reached by the courts below: § 320.5(3)(b) "is utilized principally, not for preventive purposes, but to impose punishment for unadjudicated criminal acts." 689 F.2d, at 372; see 513 F.Supp., at 715717.

The majority contends that, of the many factors we have considered in trying to determine whether a particular sanction constitutes "punishment," see Kennedy v. MendozaMartinez, 372 U.S. 144, 168169, 83 S.Ct. 554, 567568, 9 L.Ed.2d 644 (1963), the most useful are "whether an alternative purpose to which [the sanction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned," ibid. (footnotes omitted). See ante, at 24122413. Assuming, arguendo, that this test is appropriate, but cf. Bell v. Wolfish, 441 U.S., at 564565, 99 S.Ct., at 18871888 (MARSHALL, J., dissenting), it requires affirmance in these cases. The alternative purpose assigned by the State to § 320.5(3)(b) is the prevention of crime by the detained juveniles. But, as has been shown, that objective is advanced at best sporadically by the provision. Moreover, § 320.5(3)(b) frequently is invoked under circumstances in which it is extremely unlikely that the juvenile in question would commit a crime while awaiting trial. The most striking of these cases involve juveniles who have been at large without mishap for a substantial period of time prior to their initial appearances, see supra, at 287, and detainees who are adjudged delinquent and are nevertheless released into the community. In short, § 320.5(3)(b) as administered by the New York courts surely "appears excessive in relation to" the putatively legitimate objectives assigned to it.

The inference that § 320.5(3)(b) is punitive in nature is supported by additional materials in the record. For example, Judge Quinones and even appellants' counsel acknowledged that one of the reasons juveniles detained pursuant to § 320.5(3)(b) usually are released after the determination of their guilt is that the judge decides that their pretrial detention constitutes sufficient punishment. 689 F.2d, at 370371, and nn. 2728. Another Family Court Judge admitted using "preventive detention" to punish one of the juveniles in the sample. 513 F.Supp., at 708.29

In summary, application of the litmus test the Court recently has used to identify punitive sanctions supports the finding of the lower courts that preventive detention under § 320.5(3)(b) constitutes punishment. Because punishment of juveniles before adjudication of their guilt violates the Due Process Clause, see supra, at 11, the provision cannot stand.

If the record did not establish the impossibility, on the basis of the evidence available to a Family Court judge at a § 320.5(3)(b) hearing, of reliably predicting whether a given juvenile would commit a crime before his trial, and if the purposes relied upon by the State were promoted sufficiently to justify the deprivations of liberty effected by the provision, I would nevertheless still strike down § 320.5(3)(b) because of the absence of procedural safeguards in the provision. As Judge Newman, concurring in the Court of Appeals observed, "New York's statute is unconstitutional because it permits liberty to be denied, prior to adjudication of guilt, in the exercise of unfettered discretion as to an issue of considerable uncertainty likelihood of future criminal behavior." 689 F.2d, at 375.

Appellees point out that § 320.5(3)(b) lacks two crucial procedural constraints. First, a New York Family Court judge is given no guidance regarding what kinds of evidence he should consider or what weight he should accord different sorts of material in deciding whether to detain a juvenile.30 For example, there is no requirement in the statute that the judge take into account the juvenile's background or current living situation. Nor is a judge obliged to attach significance to the nature of a juvenile's criminal record or the severity of the crime for which he was arrested.31 Second, § 320.5(3)(b) does not specify how likely it must be that a juvenile will commit a crime before his trial to warrant his detention. The provision indicates only that there must be a "serious risk" that he will commit an offense and does not prescribe the standard of proof that should govern the judge's determination of that issue.32

Not surprisingly, in view of the lack of directions provided by the statute, different judges have adopted different ways of estimating the chances whether a juvenile will misbehave in the near future. "Each judge follows his own individual approach to [the detention] determination." 513 F.Supp., at 702; see App. 265 (testimony of Judge Quinones). This discretion exercised by Family Court judges in making detention decisions gives rise to two related constitutional problems. First, it creates an excessive risk that juveniles will be detained "erroneously"—i.e., under circumstances in which no public interest would be served by their incarceration. Second, it fosters arbitrariness and inequality in a decisionmaking process that impinges upon fundamental rights.

One of the purposes of imposing procedural constraints on decisions affecting life, liberty, or property is to reduce the incidence of error. See Fuentes v. Shevin, 407 U.S. 67, 8081, 92 S.Ct. 1983, 19941995, 32 L.Ed.2d 556 (1972). In Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the Court identified a complex of considerations that has proved helpful in determining what protections are constitutionally required in particular contexts to achieve that end:

"[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Id., at 335, 96 S.Ct., at 903.

As Judge Newman recognized, 689 F.2d, at 375376, a review of these three factors in the context of New York's preventive-detention scheme compels the conclusion that the Due Process Clause is violated by § 320.5(3)(b) in its present form. First, the private interest affected by a decision to detain a juvenile is personal liberty. Unnecessary abridgment of such a fundamental right, see supra, at 288, should be avoided if at all possible.

Second, there can be no dispute that there is a serious risk under the present statute that a juvenile will be detained erroneously—i.e., despite the fact that he would not commit a crime if released. The findings of fact reviewed in the preceding sections make it apparent that the vast majority of detentions pursuant to § 320.5(3)(b) advance no state interest; only rarely does the statute operate to prevent crime. See supra, at 297-298. This high incidence of demonstrated error should induce a reviewing court to exercise utmost care in ensuring that no procedures could be devised that would improve the accuracy of the decisionmaking process. Opportunities for improvement in the extant regime are apparent even to a casual observer. Most obviously, some measure of guidance to Family Court judges regarding the evidence they should consider and the standard of proof they should use in making their determinations would surely contribute to the quality of their detention determinations.33

The majority purports to see no value in such additional safeguards, contending that activity of estimating the likelihood that a given juvenile will commit a crime in the near future involves subtle assessment of a host of variables, the precise weight of which cannot be determined in advance. Ante, at 24172418. A review of the hearings that resulted in the detention of the juveniles included in the sample of 34 cases reveals the majority's depiction of the decisionmaking process to be hopelessly idealized. For example, the operative portion of the initial appearance of Tyrone Parson, the three-card monte player,34 consisted of the following:

"COURT OFFICER: Will you identify yourself.

* * * * *

"TYRONE PARSON: Tyrone Parson, Age 15.

"THE COURT: Miss Brown, how many times has Tyrone been known to the Court?

* * * * * "MISS BROWN: Seven times.

"THE COURT: Remand the respondent." Petitioners' Exhibit 18a.35

This kind of parody of reasoned decisionmaking would be less likely to occur if judges were given more specific and mandatory instructions regarding the information they should consider and the manner in which they should assess it.

Third and finally, the imposition of such constraints on the deliberations of the Family Court judges would have no adverse effect on the State's interest in detaining dangerous juveniles and would give rise to insubstantial administrative burdens. For example, a simple directive to Family Court judges to state on the record the significance they give to the seriousness of the offense of which a juvenile is accused and to the nature of the juvenile's background would contribute materially to the quality of the decisionmaking process without significantly increasing the duration of initial appearances.

In summary, the three factors enumerated in Mathews in combination incline overwhelmingly in favor of imposition of more stringent constraints on detention determinations under § 320.5(3)(b). Especially in view of the impracticability of correcting erroneous decisions through judicial review, see supra, at 24282429, the absence of meaningful procedural safeguards in the provision renders it invalid. See Santosky v. Kramer, 455 U.S. 745, 757, and n. 9, 102 S.Ct. 1388, 1396, and n. 9, 71 L.Ed.2d 599 (1982).

A principle underlying many of our prior decisions in various doctrinal settings is that government officials may not be accorded unfettered discretion in making decisions that impinge upon fundamental rights. Two concerns underlie this principle: excessive discretion fosters inequality in the distribution of entitlements and harms, inequality which is especially troublesome when those benefits and burdens are great; and discretion can mask the use by officials of illegitimate criteria in allocating important goods and rights.

So, in striking down on vagueness grounds a vagrancy ordinance, we emphasized the "unfettered discretion it places in the hands of the . . . police." Papachristou v. City of Jacksonville, 405 U.S. 156, 168, 92 S.Ct. 839, 846, 31 L.Ed.2d 110 (1972). Such flexibility was deemed constitutionally offensive because it "permits and encourages an arbitrary and discriminatory enforcement of the law." Id., at 170, 92 S.Ct., at 847. Partly for similar reasons, we have consistently held violative of the First Amendment ordinances which make the ability to engage in constitutionally protected speech "contingent upon the uncontrolled will of an official—as by requiring a permit or license which may be granted or withheld in the discretion of such official." Staub v. City of Baxley, 355 U.S. 313, 322, 78 S.Ct. 277, 282, 2 L.Ed.2d 302 (1958); accord, Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151, 153, 89 S.Ct. 935, 938, 940, 22 L.Ed.2d 162 (1969). Analogous considerations inform our understanding of the dictates of the Due Process Clause. Concurring in the judgment in Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978), striking down a statute that conditioned the right to marry upon the satisfaction of child-support obligations, Justice POWELL aptly observed:

"Quite apart from any impact on the truly indigent, the statute appears to 'confer upon [the judge] a license for arbitrary procedure,' in the determination of whether an applicant's children are 'likely thereafter to become public charges.' A serious question of procedural due process is raised by this feature of standardless discretion, particularly in light of the hazards of prediction in this area." Id., at 402, n. 4, 98 S.Ct., at 690, n. 4 (quoting Kent v. United States, 383 U.S., at 553, 86 S.Ct., at 1053, 16 L.Ed.2d 84.

The concerns that powered these decisions are strongly implicated by New York's preventive-detention scheme. The effect of the lack of procedural safeguards constraining detention decisions under § 320.5(3)(b) is that the liberty of a juvenile arrested even for a petty crime is dependent upon the "caprice" of a Family Court judge. See 513 F.Supp., at 707. The absence of meaningful guidelines creates opportunities for judges to use illegitimate criteria when deciding whether juveniles should be incarcerated pending their trials—for example, to detain children for the express purpose of punishing them.36 Even the judges who strive conscientiously to apply the law have little choice but to assess juveniles' dangerousness on the basis of whatever standards they deem appropriate.37 The resultant variation in detention decisions gives rise to a level of inequality in the deprivation of a fundamental right too great to be countenanced under the Constitution.

The majority acknowledges—indeed, founds much of its argument upon—the principle that a State has both the power and the responsibility to protect the interests of the children within its jurisdiction. See Santosky v. Kramer, supra, at 766, 102 S.Ct., at 1401. Yet the majority today upholds a statute whose net impact on the juveniles who come within its purview is overwhelmingly detrimental. Most persons detained under the provision reap no benefit and suffer serious injuries thereby. The welfare of only a minority of the detainees is even arguably enhanced. The inequity of this regime, combined with the arbitrariness with which it is administered, is bound to disillusion its victims regarding the virtues of our system of criminal justice. I can see—and the majority has pointed to—no public purpose advanced by the statute sufficient to justify the harm it works.

I respectfully dissent.