These comments apply to all judges but most particularly to the juvenile court judges themselves since they are the ones charged with administering the statutes. I say "administering the statutes" advisedly. I do not mean administering the juvenile homes. The juvenile court judges need not muckrake by going into the homes and telling the administrator how to do his job. However, before the judge approves the system he should know what the system is.

Appellate judges play a very different, and I might say much more limited role. We must merely make sure that the juvenile court judge knows all the relevant facts and exercises an intelligent judgment within a wide range of permissible discretion. For us this task is not essentially different from reviewing any federal administrative agencies which deal primarily with property values as opposed to personal ones. For example, we do not allocate air routes or issue television licenses. We do, however, require the Civil Aeronautics Board and the Federal Communications Commission to discover all the relevant facts and base their decisions on those facts. We do not purport to, nor can we, make the judgments themselves but we do make sure that the agency exercises its judgment intelligently. I am fully willing to acknowledge that juvenile judges have a great deal of expertise in their area. But expertise and discretion are meaningless without a factual basis.

Having discretion, of course, does not mean that it is being exercised. For example, suppose the juvenile court judge had before him one hundred children, each with different needs and different problems. And suppose for each of the children the judge made only one of two decisions, either to release him or to send him to the one inadequate institution which the community provides. In a recent juvenile court record I studied, the disposition order was pre-printed with two boxes: probation to the parents or commitment to the Department of Public Welfare. I would not call that an exercise in discretion. There are, after all, other things which can be done ranging from provision of foster care to more assistance for the child's parents, from community programs to sending the child to a private institution. And I think that an imaginative juvenile court judge with an imaginative staff could provide for some of these alternatives without further statutory authority. To be fair, I must say that it is not simply a failure of imagination which limits the search for alternatives. It is also a lack of staff, of time, of public understanding, and of money.

Saying that the juvenile court judge has discretion does not mean that it is not being abused. And I'm sure you will not be surprised to hear that it is being abused all too often, as it was in Betty Jean's case.

I think a court is justified in acting in this area simply on the basis of the most traditional notions of what a court must do when litigants come before it. However, I need not rely completely on the inherent responsibility of courts, for the legislature has not been silent. For example, our District of Columbia Code requires the Juvenile Court Act to be construed so that "the child shall receive such care and guidance, preferably in his own home, as will serve his welfare and the best interests of the District" and that, when a child must be removed from his home, the "court shall secure for him custody, care, and discipline as nearly as possible equivalent to that which should have been given him by his parents. How, then, can a court avoid this responsibility?

Where does this all lead? Suppose the judges and the psychiatrists and the correction officials begin to see that the promise of treatment is a fraud? I suppose I share in some degree the lawyer's faith that if we know all the facts, just decisions will follow naturally and the treatment will become a reality. But I doubt if this faith is justified. In May of 1966 the Juvenile Court for the District of Columbia adopted a new policy memorandum outlining the factors which must be considered before a juvenile is waived to the adult court. It is now the Juvenile Court's stated policy that if treatment is not available the child should be waived. The question raised by this new policy is clear: Are we to punish someone because the community has not provided the means and facilities for his treatment and, perhaps, cure?

I have advocated the first step-learning the facts-on the assumption that once faced with reality we would be jolted into action. Here we have a situation, though, in which the exposure of the lack of treatment will prompt not treatment-but punishment. I am puzzled. Perhaps we have more deeply ingrained escape mechanisms than I had imagined. I must say that I have a certain amount of sympathy for the escape. None of us wants to be faced with the possibility of failure and none of us wants to have our usefulness called into question. If

the juvenile court judges require treatment, they would have had to face the possibility that treatment itself is a ruse, at least when we are talking about mental and emotional disorders particularly associated with the slums. Why should they subject themselves to the frustration of impotence? This possibility of failure must prompt escape in this whole area, not only by the judges, for if the judge feels threatened by the fact that treatment may be an illusion, how much more threatened must the doctors and social workers feel? If the courts and the legislatures provide a psychiatrist for each disturbed child then, the burden of failure would shift to you.

I do not mean to end on a negative note, but I have all these doubts, and I want to share them with you. Perhaps these doubts will lead us to a realization that we can never be satisfied with treating the individual unless we also treat his society. But whatever the solution, individual treatment or social revolution, the situation is not hopeless. The hope comes from a secret weapon, the same one which the Israeli Ambassador told me about in 1948 when the Araus were pushing the Israelis into the sea. The secret weapon was no alternative. They simply could not contemplate the alternative of failure, and neither can we.

Mr. PUCINSKI. One of the questions that I would like to develop with you, Judge, is your reference on page 4 to the Supreme Court having the Gault case before it.

We have discussed it here in the committee with other witnesses, but you seem to create the impression that the Gault case could very well literally revolutionize the treatment of juveniles in this country, and I wonder if you care to elaborate on that. Judge.

Judge BAZELON. I want to make perfectly clear that I wasn't trying to tell the Supreme Court of the United States what to do. Mr. PUCINSKI. We certainly understand that.

Judge BAZLON. I was just using the case as an illustration, and I was careful in the speech to point out I was dealing with the allegations the parties were making. And based on the allegations, assuming they are true-I don't know if they are true or not, but if they are trueit is quite clear that this boy was not accorded any of the safeguards that are given adults.

In this speech, I also recognized that that may not necessarily be required. In other words, all the safeguards that are given adults may not be required. But if they are not, and to the extent that they are not. The Supreme Court of Arizona justified it on the basis that this boy would receive individualized treatment. And I was suggesting that that is an illusion. There is no individualized treatment insofar as I

am aware.

Now, if the Supreme Court says-and I don't know what they will say, obriously, but if they were to say-"You must accord all of the safeguards that you have given an adult, unless you really take care of this child" if they do that it will be a spur to real treatment.

On the other hand, if real treatment is not provided, I don't think it does very much good just to give the child all the safeguards of an adult. I am not against it; I am for it. But I don't think it is going to solve the problem. In other words, the problem will not be solved if we give children all the rights that adults get. The problem will be solved when we accord real meaningful treatment.

Mr. PrVINSKI, Judge, I certainly agree with you. And I don't think that any member of this committee wants to try to tell the Supreme Court what to da We don't like to have them tell us what we should da. But I do think that your own testimony and other testimony before this committee has raised a very serious question, which goes to the very roots of this legislation.

And that is with the growing awareness in this country of the rights of individuals, and the greater stress on them. We in Congress have to recognize the fact that unless the communities are given the wherewithal to give young people in trouble the kind of care they need to prevent them from becoming more involved in trouble, we have as an alternative the fact that we can't deny the youngster his rights just because he is a youngster. At least, I am not aware of any language in the Constitution that draws the distinction and provides inalienable rights to people only of a certain age.

Unless I have missed something in my studies, I think that these are inalienable rights guaranteed to all people. So this legislation becomes even more significant, in that it anticipates a problem that this Nation and 4,500 communities in this Nation are going to be confronted with sooner or later, regardless of what the Supreme Court does.

Judge BAZELON. I think that is true.

Mr. PUCINSKI. And this legislation is geared to help those communities resolve that problem.

Judge BAZELON. It certainly looks that way to me. In my own State of Illinois-I was out there a few weeks ago, and I was caught in between two friends. One is a judge who was sending a juvenile to one of the State institutions; and the director of mental health, also a friend of mine, said he wouldn't take him. They were having a donnybrook. And the reason why the director of mental health refused to take them was because he had no program, as he told me. He had no program for juveniles.

There had been no provision made for juveniles, and it would be unfair to take the child into his institution and give him a bed-as a bed is not treatment. That is the kind of problem we have.

Now, I am for giving that child all of his rights. But on the other hand, if you give him all his rights and no treatment to rehabilitate him, you are not going to advance the problem too far.

Mr. PUCINSKI. This is why I was very happy to see you before the committee this afternoon, because this is an aspect of this legislation that I think we should all concern ourselves with.

Mr. Ford.

Mr. FORD. I would like to join the chairman in thanking the judge for his testimony. I have not had an opportunity to examine the contents of the speech that has now been put into the record, and I have been trying to follow your exchange, here.

I have no questions at this time, Judge, except that I notice you conclude your statement by suggesting the possibility that Washington be a model, to be followed by other parts of the country.

I might observe that it has always puzzled me that we have the opportunity to make this a model in a number of ways of what the hopes and dreams of Americans should be. I am beginning to understand now that there is little hope that Washington will very soon, at least, be a model as to social problems.

Judge BAZELON. We don't want you to give up.

Mr. FORD. I had a lot more optimism before I joined the Congress than I have had since. And again I say it is not because there is a lack of talent in this city. It probably has more talent per square mile than any other section of the country. But the Congress should be very much

ashamed of itself for the fact that we don't have model programs in areas such as this. Because we can't use the excuse that we use with other failures and say that it is inept State officials who intervene between us and the people we are trying to help.

If we can't do it here, I sometimes wonder what right we have sitting here and criticizing the States and telling them that they can't do it. when we are in fact the body charged with the responsibility for this Government.

Chairman Pucinski, as you well know, spent a good deal of the year, last year, wading around in the school system here, trying to correct situations that defy the imagination, when you think of them as existing in the Capital of the strongest and, we like to think, most progres

sive Nation in the world.

After what Mr. Pucinski found in the school system, it is not at all surprising that you expressed dismay at the treatment and facilities afforded to meet the problem of juvenile delinquency in the District.

Judge BAZELON. I was in touch with the chairman during that time. I furnished some testimony to the committee. I couldn't agree more. I think that our greatest opportunity for dealing with the problem of juvenile delinquency, of course, is the schools and the educational system. And we are, of course, missing the best opportunity. But I don't think it is much worse than it is around the country. It is bad all over. as I understand it.

People came to see me, at the time the President's Crime Commissions were being organized, and they said, "What about the Escobedo rule. and all these things." I said, "You and I could sit here for weeks arguing about all this, and it wouldn't make any difference who won the argument. It wouldn't advance the problem one bit. In other words, we wouldn't be getting at the causes." I said, "You are wasting your time sitting here talking to me. Go over to Shaw Junior High School and take a look at those schools and some of the other schools in the Cardozo area, and you will spend your time much more profitably, because right with the naked eye you can see things that ought to be attempted."

And, of course, I have been very outspoken about that, and my position is very well known. I was chairman of the Citizens Steering Committee for the Cardozo area. And I couldn't agree more than there is one great opportunity we have that we keep missing everyday we get up, and that is the school system, the educational system.

Mr. PUCINSKI. If my colleague will yield, though, I think that we are starting to see just a little bit of sunlight. There is developing a greater awareness in the House District Committee. The Superintendent himself has taken our suggestion and has come in with a much more realistic budget than he has heretofore. And I get the feeling that the Congress itself is becoming more and more aware of the fact that we can no longer sweep under the rug the monumental problems that confront us in the Capital City.

So perhaps with the help of this committee and various other activities we can start moving forward and doing what the Judge has suggested, creating at least some problems here that will be a guidepost for the rest of the country.

Mr. FORD. I had concluded, before the chairman made that comment, but I can't agree that there is any sunlight. The only legislation

we have passed since I came to the Congress that affects the problem of dealing with antisocial conduct in the District of Columbia has been regressive.

As a matter of fact, I have voted against both bills of any significance that have been called crime reform bills in the District of Columbia, because they moved the District further back into the dark ages rather than forward.

You would guess from the content of the bills that the Congress has put forward that this is the seat of conservatism here in this area, and that none of the people responsible for the landmark decisions being handed down regularly by the Supreme Court have any influence in this town.

Judge BAZELON. I am not sure they have much influence around the country.

Mr. PUCINSKI. Mr. Eshleman.

Mr. ESHLEMAN. I would like to ask you just one question, if I may. Drawing on your years of judicial and legal experience, what in your opinion is the No. 1 cause for juvenile delinquency? Or if there are

two causes

Judge BAZELON. As far as I am concerned, that is quite obvious. It is your social facts, your social conditions.

Mr. ESHLEMAN. You would think poverty is No. 1.

Judge BAZELON. Poverty and all the incidences of poverty, which of course include bad educational systems, a bad economic situation, bad cultural conditions. The cultural, the social, the economic, the educational facts are the things that I don't think there is any question about, that these are the things that are making the problem.

I would say that I am not against having workers, social workers, psychiatric social workers, psychologists, and psychiatrists, to deal with these people, to try to help us with rehabilitation, and so forth. But I don't think, if you had one psychiatrist for every child, you would solve the problem. It runs much deeper than that. All the psy-. chiatrist can do, or the social worker, is to try to help somebody.

But he has to turn his back on the conditions from which he came. And I was just trying to talk to some of my colleagues from Ohio and Michigan, and they were telling me, I guess in Detroit-what was that figure-that 86 percent of the people that are incarcerated there have less than a fifth-grade education?

Mr. ESHLEMAN. Have never graduated from high school. But their reading level showed them to be fourth and fifth grade. Judge BAZELON. Eighty-six percent? Is that it?

Mr. ESHLEMAN. Yes.

Judge BAZELON. Eight-six percent of the boys confined had reading levels at the fourth- and fifth-grade level. So you give him a psychiatrist, and you are not going to do him much good. Or give him a social worker, and you are not going to do him much good.

A job alone isn't enough. What kind of a job? It is the job that keeps him interested.

This thing is verv, very complex. I don't suppose there is any one certain approach. But it seems to me that the most obvious one, the one through which we can make the broadest gains, would be the educational system. And there of course one of the things you