Breed v. Jones (1975)  421 U.S. 519

Part V:  Juvenile Justice

The following case has been heavily edited and abridged.  The idea is to make it more readable.  As such, it should not be relied upon as binding authority.

We granted certiorari to decide whether the prosecution of respondent as an adult, after Juvenile Court proceedings which resulted in a finding that respondent had violated a criminal statute and a subsequent finding that he was unfit for treatment as a juvenile, violated the Fifth and Fourteenth Amendments to the United States Constitution.

On February 9, 1971, a petition was filed in the Superior Court of California, County of Los Angeles, Juvenile Court, alleging that respondent, then 17 years of age, was a person described by Cal. Welf. & Inst’ns Code § 602 (1966), in that, on or about February 8, while armed with a deadly weapon, he had committed acts which, if committed by an adult, would constitute the crime of robbery in violation of Cal. Penal Code § 211 (1970).  The following day, a detention hearing was held, at the conclusion of which respondent was ordered detained pending a hearing on the petition.

The jurisdictional or adjudicatory hearing was conducted on March 1, pursuant to Cal. Welf. & Inst’ns Code § 701(1966).  After taking testimony from two prosecution witnesses and respondent, the Juvenile Court found that the allegations in the petition were true and that respondent was a person described by § 602, and it sustained the petition.  The proceedings were continued for a dispositional hearing, pending which the court ordered that respondent remain detained.

At a hearing conducted on March 15, the Juvenile Court indicated its intention to find respondent “not… amenable to the care, treatment and training program available through the facilities of the juvenile court” under Cal. Welf. & Inst’ns Code § 707 (Supp. 1967). Respondent’s counsel orally moved “to continue the matter on the ground of surprise,” contending that respondent “was not informed that it was going to be a fitness hearing.” The court continued the matter for one week, at which time, having considered the report of the probation officer assigned to the case and having heard her testimony, it declared respondent “unfit for treatment as a juvenile,” and ordered that he be prosecuted as an adult.

Thereafter, respondent filed a petition for a writ of habeas corpus in Juvenile Court, raising the same double jeopardy claim now presented. Upon the denial of that petition, respondent sought habeas corpus relief in the California Court of Appeal, Second Appellate District. Although it initially stayed the criminal prosecution pending against respondent, that court denied the petition.  The Supreme Court of California denied respondent’s petition for hearing.

After a preliminary hearing respondent was ordered held for trial in Superior Court, where an information was subsequently filed accusing him of having committed robbery, in violation of Cal. Penal Code § 211(1970), while armed with a deadly weapon, on or about February 8, 1971.  Respondent entered a plea of not guilty, and he also pleaded that he had “already been placed once in jeopardy and convicted of the offense charged, by the judgment of the Superior Court of the County of Los Angeles, Juvenile Court, rendered… on the 1st day of March, 1971.”  By stipulation, the case was submitted to the court on the transcript of the preliminary hearing.  The court found respondent guilty of robbery in the first degree under Cal. Penal Code § 211a (1970) and ordered that he be committed to the California Youth Authority. No appeal was taken from the judgment of conviction.

On December 10, 1971, respondent, through his mother as guardian ad litem, filed the instant petition for a writ of habeas corpus in the United States District Court for the Central District of California.  In his petition he alleged  that his transfer to adult court pursuant to Cal. Welf. & Inst’ns Code § 707 and subsequent trial there “placed him in double jeopardy.”  The District Court denied the petition, rejecting respondent’s contention that jeopardy attached at his adjudicatory hearing.  It concluded that the “distinctions between the preliminary procedures and hearings provided by California law for juveniles and a criminal trial are many and apparent and the effort of [respondent] to relate them is unconvincing,” and that “even assuming jeopardy attached during the preliminary juvenile proceedings… it is clear that no new jeopardy arose by the juvenile proceeding sending the case to the criminal court.”

The Court of Appeals reversed, concluding that applying double jeopardy protection to juvenile proceedings would not “impede the juvenile courts in carrying out their basic goal of rehabilitating the erring youth,” and that the contrary result might “do irreparable harm to or destroy their confidence in our judicial system.”  The court therefore held that the Double Jeopardy Clause “is fully applicable to juvenile court proceedings.”

Turning to the question whether there had been a constitutional violation in this case, the Court of Appeals pointed to the power of the Juvenile Court to “impose severe restrictions upon the juvenile’s liberty” in support of its conclusion that jeopardy attached in respondent’s adjudicatory hearing.  It rejected petitioner’s contention that  no new jeopardy attached when respondent was referred to Superior Court and subsequently tried and convicted, finding “continuing jeopardy” principles advanced by petitioner inapplicable. Finally, the Court of Appeals observed that acceptance of petitioner’s position would “allow the prosecution to review in advance the accused’s defense and, as here, hear him testify about the crime charged,” a procedure it found offensive to “our concepts of basic, even-handed fairness.” The court therefore held that once jeopardy attached at the adjudicatory hearing, a minor could not be retried as an adult or a juvenile “absent some exception to the double jeopardy prohibition,” and that there “was none here.”

We granted certiorari because of a conflict between Courts of Appeals and the highest courts of a number of States on the issue presented in this case and similar issues and because of the importance of final resolution of the issue to the administration of the juvenile-court system.


The parties agree that, following his transfer from Juvenile Court, and as a defendant to a felony information, respondent was entitled to the full protection of the Double Jeopardy Clause of the Fifth Amendment, as applied to the States through the Fourteenth Amendment.  In addition, they agree that respondent was put in jeopardy by the proceedings on that information, which resulted in an adjudication that he was guilty of robbery in the first degree and in a sentence of commitment.  Finally, there is no dispute that the petition filed in Juvenile Court and the information filed in Superior Court related to the “same offence” within the meaning of the constitutional prohibition. The point of disagreement between the parties, and the question for our decision, is whether, by reason of the proceedings in Juvenile Court, respondent was “twice put in jeopardy.”


Jeopardy denotes risk.  In the constitutional sense, jeopardy describes the risk that is traditionally associated with a criminal prosecution. Although the constitutional language, “jeopardy of life or limb,” suggests proceedings in which only the most serious penalties can be imposed, the Clause has long been construed to mean something far broader than its literal language.  At the same time, however, we have held that the risk to which the Clause refers is not present in proceedings that are not “essentially criminal.”

Although the juvenile court system had its genesis in the desire to provide a distinctive procedure and setting to deal with the problems of youth, including those manifested by antisocial conduct, our decisions in recent years have recognized that there is a gap between the originally benign conception of the system and its realities. With the exception of McKeiver v. Pennsylvania (1971), the Court’s response to that perception has been to make applicable in juvenile proceedings constitutional guarantees associated with traditional criminal prosecutions.  In so doing the Court has evinced awareness of the threat which such a process represents to the efforts of the juvenile-court system, functioning in a unique manner, to ameliorate the harshness of criminal justice when applied to youthful offenders.  That the system has fallen short of the high expectations of its sponsors in no way detracts from the broad social benefits sought or from those benefits that can survive constitutional scrutiny.

We believe it is simply too late in the day to conclude, as did the District Court in this case, that a juvenile is not put in jeopardy at a proceeding whose object is to determine whether he has committed acts that violate a criminal law and whose potential consequences include both the stigma inherent in such a determination and the deprivation of liberty for many years.  For it is clear under our cases that determining the relevance of constitutional policies, like determining the applicability of constitutional rights, in juvenile proceedings, requires that courts eschew “the ‘civil’ label-of-convenience which has been attached to juvenile proceedings,” and that “the juvenile process… be candidly appraised.”

As we have observed, the risk to which the term jeopardy refers is that traditionally associated with “actions intended to authorize criminal punishment to vindicate public justice.”  Because of its purpose and potential consequences, and the nature and resources of the State, such a proceeding imposes heavy pressures and burdens— psychological, physical, and financial—on a person charged.  The purpose of the Double Jeopardy Clause is to require that he be subject to the experience only once “for the same offence.”

In In re Gault, this Court concluded that, for purposes of the right to counsel, a “proceeding where the issue is whether the child will be found to be ‘delinquent’ and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution.”  The Court stated that the term “delinquent” had “come to involve only slightly less stigma than the term ‘criminal’ applied to adults,” and that, for purposes of the privilege against self-incrimination, “commitment is a deprivation of liberty. It is incarceration against one’s will, whether it is called ‘criminal’ or ‘civil.'”

Thus, in terms of potential consequences, there is little to distinguish an adjudicatory hearing such as was held in this case from a traditional criminal prosecution. For that reason, it engenders elements of “anxiety and insecurity” in a juvenile, and imposes a “heavy personal strain.”  And we can expect that, since our decisions implementing fundamental fairness in the juvenile-court system, hearings have been prolonged, and some of the burdens incident to a juvenile’s defense increased, as the system has assimilated the process thereby imposed.

We deal here, not with “the formalities of the criminal adjudicative process,” but with an analysis of an aspect of the juvenile-court system in terms of the kind of risk to which jeopardy refers.  Under our decisions we can find no persuasive distinction in that regard between the proceeding conducted in this case pursuant to Cal. Welf. & Inst’ns Code § 701 and a criminal prosecution, each of which is designed “to vindicate [the] very vital interest in enforcement of criminal laws.”  We therefore conclude that respondent was put in jeopardy at the adjudicatory hearing.  Jeopardy attached when respondent was “put to trial before the trier of the facts,” that is, when the Juvenile Court, as the trier of the facts, began to hear evidence.

Petitioner argues that, even assuming jeopardy attached at respondent’s adjudicatory hearing, the procedure by which he was transferred from Juvenile Court and tried on a felony information in Superior Court did not violate the Double Jeopardy Clause. The argument is supported by two distinct, but in this case overlapping, lines of analysis. First, petitioner reasons that the procedure violated none of the policies of the Double Jeopardy Clause or that, alternatively, it should be upheld by analogy to those cases which permit retrial of an accused who has obtained reversal of a conviction on appeal. Second, pointing to this Court’s concern for “the juvenile court’s assumed ability to function in a unique manner,” petitioner urges that, should we conclude traditional principles “would otherwise bar a transfer to adult court after a delinquency adjudication,” we should avoid that result here because it “would diminish the flexibility and informality of juvenile court proceedings without conferring any additional due process benefits upon juveniles charged with delinquent acts.”


We cannot agree with petitioner that the trial of respondent in Superior Court on an information charging the same offense as that for which he had been tried in Juvenile Court violated none of the policies of the Double Jeopardy Clause.  For, even accepting petitioner’s premise that respondent “never faced the risk of more than one punishment,” we have pointed out that “the Double Jeopardy Clause… is written in terms of potential or risk of trial and conviction, not punishment.”  And we have recently noted:   “The policy of avoiding multiple trials has been regarded as so important that exceptions to the principle have been only grudgingly allowed.  Initially, a new trial was thought to be unavailable after appeal, whether requested by the prosecution or the defendant…. It was not until 1896 that it was made clear that a defendant could seek a new trial after conviction, even though the Government enjoyed no similar right…. Following the same policy, the Court has granted the Government the right to retry a defendant after a mistrial only where ‘there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.'”

Respondent was subjected to the burden of two trials for the same offense; he was twice put to the task of marshaling his resources against those of the State, twice subjected to the “heavy personal strain” which such an experience represents.  We turn, therefore, to inquire whether either traditional principles or “the juvenile court’s assumed ability to function in a unique manner,” supports an exception to the “constitutional policy of finality” to which respondent would otherwise be entitled.


In denying respondent’s petitions for writs of habeas corpus, the California Court of Appeal first, and the United States District Court later, concluded that no new jeopardy arose as a result of his transfer from Juvenile Court and trial in Superior Court.  In the view of those courts, the jeopardy that attaches at an adjudicatory hearing continues until there is a final disposition of the case under the adult charge.

The phrase “continuing jeopardy” describes both a concept and a conclusion.  As originally articulated by Mr. Justice Holmes in his dissent in Kepner v. United States(1904), the concept has proved an interesting model for comparison with the system of constitutional protection which the Court has in fact derived from the rather ambiguous language and history of the Double Jeopardy Clause.  Holmes’ view has “never been adopted by a majority of this Court.”

The conclusion, “continuing jeopardy,” as distinguished from the concept, has occasionally been used to explain why an accused who has secured the reversal of a conviction on appeal may be retried for the same offense.  Probably a more satisfactory explanation lies in analysis of the respective interests involved.  Similarly, the fact that the proceedings against respondent had not “run their full course,” within the contemplation of the California Welfare and Institutions Code, at the time of transfer, does not satisfactorily explain why respondent should be deprived of the constitutional protection against a second trial.  If there is to be an exception to that protection in the context of the juvenile-court system, it must be justified by interests of society, reflected in that unique institution,  or of juveniles themselves, of sufficient substance to render tolerable the costs and burdens, noted earlier, which the exception will entail in individual cases.


The possibility of transfer from juvenile court to a court of general criminal jurisdiction is a matter of great significance to the juvenile.  At the same time, there appears to be widely shared agreement that not all juveniles can benefit from the special features and programs of the juvenile-court system and that a procedure for transfer to an adult court should be available.  This general agreement is reflected in the fact that an overwhelming majority of jurisdictions permits transfer in certain circumstances.  As might be expected, the statutory provisions differ in numerous details. Whatever their differences, however, such transfer provisions represent an attempt to impart to the juvenile-court system the flexibility needed to deal with youthful offenders who cannot benefit from the specialized guidance and treatment contemplated by the system.

We do not agree with petitioner that giving respondent the constitutional protection against multiple trials in this context will diminish flexibility and informality to the extent that those qualities relate uniquely to the goals of the juvenile-court system. We agree that such a holding will require, in most cases, that the transfer decision be made prior to an adjudicatory hearing.  To the extent that evidence concerning the alleged offense is considered relevant, it may be that, in those cases where transfer is considered and rejected, some added burden will be imposed on the juvenile courts by reason of duplicative proceedings.  Finally, the nature of the evidence considered at a transfer hearing may in some States require that, if transfer is rejected, a different judge preside at the adjudicatory hearing.

We recognize that juvenile courts, perhaps even more than most courts, suffer from the problems created by spiraling caseloads unaccompanied by enlarged resources and manpower.  And courts should be reluctant to impose on the juvenile-court system any additional requirements which could so strain its resources as to endanger its unique functions.  However, the burdens that petitioner envisions appear to us neither qualitatively nor quantitatively sufficient to justify a departure in this context from the fundamental prohibition against double jeopardy.

A requirement that transfer hearings be held prior to adjudicatory hearings affects not at all the nature of the latter proceedings.  More significantly, such a requirement need not affect the quality of decisionmaking at transfer hearings themselves. In Kent v. United States, the Court held that hearings under the statute there involved “must measure up to the essentials of due process and fair treatment.”  However, the Court has never attempted to prescribe criteria for, or the nature and quantum of evidence that must support, a decision to transfer a juvenile for trial in adult court. We require only that, whatever the relevant criteria, and whatever the evidence demanded, a State determine whether it wants to treat a juvenile within the juvenile-court system before entering upon a proceeding that may result in an adjudication that he has violated a criminal law and in a substantial deprivation of liberty, rather than subject him to the expense, delay, strain, and embarrassment of two such proceedings.

Moreover, we are not persuaded that the burdens petitioner envisions would pose a significant problem for the administration of the juvenile-court system. The large number of jurisdictions that presently require that the transfer decision be made prior to an adjudicatory hearing, and the absence of any indication that the juvenile courts in those jurisdictions have not been able to perform their task within that framework, suggest the contrary. The likelihood that in many cases the lack of need or basis for a transfer hearing can be recognized promptly reduces the number of cases in which a commitment of resources is necessary. In addition, we have no reason to believe that the resources available to those who recommend transfer or participate in the process leading to transfer decisions are inadequate to enable them to gather the information relevant to informed decision prior to an adjudicatory hearing.

To the extent that transfer hearings held prior to adjudication result in some duplication of evidence if transfer is rejected, the burden on juvenile courts will tend to be offset somewhat by the cases in which, because of transfer, no further proceedings in juvenile court are required.  Moreover, when transfer has previously been rejected, juveniles may well be more likely to admit the commission of the offense charged, thereby obviating the need for adjudicatory hearings, than if transfer remains a possibility. Finally, we note that those States which presently require a different judge to preside at an adjudicatory hearing if transfer is rejected also permit waiver of that requirement.  Where the requirement is not waived, it is difficult to see a substantial strain on judicial resources.

Quite apart from our conclusions with respect to the burdens on the juvenile-court system envisioned by petitioner, we are persuaded that transfer hearings prior to adjudication will aid the objectives of that system. What concerns us here is the dilemma that the possibility of transfer after an adjudicatory hearing presents for a juvenile, a dilemma to which the Court of Appeals alluded.  Because of that possibility, a juvenile, thought to be the beneficiary of special consideration, may in fact suffer substantial disadvantages.

If he appears uncooperative, he runs the risk of an adverse adjudication, as well as of an unfavorable dispositional recommendation. If, on the other hand, he is cooperative, he runs the risk of prejudicing his chances in adult court if transfer is ordered.  We regard a procedure that results in such a dilemma as at odds with the goal that, to the extent fundamental fairness permits, adjudicatory hearings be informal and nonadversary. Knowledge of the risk of transfer after an adjudicatory hearing can only undermine the potential for informality and cooperation which was intended to be the hallmark of the juvenile-court system.  Rather than concerning themselves with the matter at hand, establishing innocence or seeking a disposition best suited to individual correctional needs, the juvenile and his attorney are pressed into a posture of adversary wariness that is conducive to neither.


We hold that the prosecution of respondent in Superior Court, after an adjudicatory proceeding in Juvenile Court, violated the Double Jeopardy Clause of the Fifth Amendment, as applied to the States through the Fourteenth Amendment.  The mandate of the Court of Appeals, which was stayed by that court pending our decision, directs the District Court “to issue a writ of habeas corpus directing the state court, within 60 days, to vacate the adult conviction of Jones and either set him free or remand him to the juvenile court for disposition.”  Since respondent is no longer subject to the jurisdiction of the California Juvenile Court, we vacate the judgment and remand the case to the Court of Appeals for such further proceedings consistent with this opinion as may be appropriate in the circumstances.

So ordered.

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Last Modified: 04/30/2021

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