(dissenting) — This case involves the constitutional right to a jury trial. The majority denies this fundamental right to juveniles who have never been convicted of a crime, and yet are imprisoned with adults in an adult penitentiary. The majority denies this right under the guise that an administrative transfer of a juvenile from a juvenile detention facility into an adult penitentiary merely changes the place of confinement. I cannot support this viewpoint. The majority’s holding requires a finding that the end result, the place of punishment, is interchangeable between two systems that have different purposes and afford different procedural safeguards. The majority’s holding also requires a factual finding of similarity between a juvenile detention facility and an *428adult penitentiary. I refuse to equate time spent in a juvenile detention facility with a sentence in adult prison.
The majority, in setting out the facts of this case, characterizes Monroe’s conduct as "extreme misconduct.” Majority at 416. This characterization is based on the Department of Social and Health Services’ (DSHS) findings, which characterized some of Monroe’s misconduct as "assaults.” However, an assault is a legal definition of a criminal act. If Monroe committed an assault while confined in a juvenile detention facility, there exists a procedure under which he may be charged, "declined” to an adult court, provided all attendant constitutional rights and, if convicted, punished in the adult system! RCW 13.40.110. If our present juvenile justice and adult criminal systems are to remain separate and intact, only conviction of a crime founded upon a criminal prosecution with all constitutional safeguards can result in incarceration in an adult prison. I would hold RCW 13.40.280 unconstitutional because it violates the constitutional right to a jury trial.
RCW 13.40.280 gives the Secretary of DSHS, with the consent of the Secretary of the Department of Corrections (DOC), the authority to transfer a juvenile in the custody of DSHS to DOC on the basis of an administrative hearing, which is based on new findings of fact regarding the juvenile’s conduct. The majority recognizes our juvenile justice and adult criminal systems are separate and distinct. The majority also recognizes our cases denying juveniles the right to a jury trial in the juvenile system have grounded their reasoning in the differences between the juvenile and adult systems. In re Welfare of Estes, 73 Wn.2d 263, 438 P.2d 205 (1968); State v. Lawley, 91 Wn.2d 654, 591 P.2d 772 (1979); State v. Schaaf, 109 Wn.2d 1, 743 P.2d 240 (1987). In denying the right to a jury trial to juveniles adjudicated in the juvenile system, we have emphasized that juvenile proceedings are rehabilitative in nature and, thus, distinguishable from adult criminal proceedings. Schaaf, 109 Wn.2d at 4.
*429The United States Supreme Court has recognized juvenile proceedings as civil, not criminal, in nature; therefore, the juvenile is constitutionally entitled to only certain procedures and benefits as a consequence of the statutory right to exclusive juvenile jurisdiction. Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966). It is the rehabilitative nature of the juvenile system and its less onerous punishment that account for the relaxation of some of the constitutional procedures afforded adults in the criminal system, including the right to a jury trial. See McKeiver v. Pennsylvania, 403 U.S. 528, 545, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971) (reasoning that a jury trial in juvenile proceedings would put an end to the idealistic prospect of an intimate, informal, protective proceeding); In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967) (holding juvenile proceedings that lead to commitment in state facilities for delinquents must measure up to the essentials of due process and fair treatment).
The right to a jury trial in criminal prosecutions under the federal and state constitutions is well established. Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968); City of Pasco v. Mace, 98 Wn.2d 87, 653 P.2d 618 (1982). The United States Supreme Court has held the federal right to a jury trial under the Sixth Amendment attaches from the first moment of a criminal proceeding, except in that class of offenses known as petty. Callan v. Wilson, 127 U.S. 540, 8 S. Ct. 1301, 32 L. Ed. 223 (1888). We have held article I, section 21 of our state constitution affords broader protection and guarantees the right to a jury trial for any adult criminal offense. City of Pasco, 98 Wn.2d at 96-97. A juvenile adjudicated as an adult within the adult system is entitled to the same right to a jury trial as is an adult. Kent, 383 U.S. at 568 (App. to Op. of the Ct.).
Further, whenever a juvenile is transferred into the adult system in a decline proceeding under RCW 13.40.110, that juvenile is entitled to certain safeguards in addition *430to those afforded an adult charged with a crime. After a juvenile is charged in the juvenile system, the juvenile, the prosecutor, or the court itself may request a transfer to the adult criminal system for prosecution. RCW 13.40.110. Before transfer, the court must conduct a hearing to determine whether to decline juvenile court jurisdiction and prosecute the juvenile as an adult.
The Supreme Court has set forth specific factors for courts to use in this determination,5 and we adopted these factors to apply to RCW 13.40.110 in State v. Holland, 98 Wn.2d 507, 517, 656 P.2d 1056 (1983). In addition to the Kent factors, the court must determine the treatment of the juvenile is consonant with the purpose of the Juvenile Justice Act of 1977 and record in writing its reasons for declination in a manner sufficient for meaningful review. Holland, 98 Wn.2d at 516. The court must also find the declination is in the best interest of the juvenile or the public. RCW 13.40.110(l)(a) and (3). After the juvenile has been charged, declined, tried (with the attendant right to a jury trial under the federal and state constitutions), and *431convicted, imprisonment in an adult institution in Washington may be imposed.
Thus, both adults and juveniles initially committed to the adult criminal justice system for punishment in adult prison have been afforded a jury trial and due process protections in a judicial setting. They have been found guilty of a crime. Juveniles transferred into the adult system under RCW 13.40.280, on the other hand, have been adjudicated in the juvenile system, found guilty of an offense (not a crime), and under the statutory procedures in question here, transferred into the adult system for placement in adult prison on the basis of a new finding of fact in an administrative hearing. This procedure results in the juvenile being punished as a convicted criminal without the same constitutional right to a jury trial afforded those criminally convicted.
It is exactly the differences between the rehabilitative purposes of juvenile placement and adult punishment which have allowed us to find that fewer constitutional safeguards are necessary in the juvenile system— safeguards such as the right to a jury trial. The majority finds the end result, the place of punishment, is interchangeable between two systems that have different purposes and afford different procedural safeguards.
Citing to differences between a juvenile adjudication and an adult criminal conviction, the majority concludes that because a transfer to an adult prison does not carry the same "ramifications” as does an adult conviction the transfer is constitutionally permissible. Majority at 420-21. However, it is, in large part, the place of punishment in the juvenile system that allows us to deny a juvenile the right to a jury trial within the juvenile system. If the place of punishment is changed to that of an adult institution, it is not at all clear that other advantages of the juvenile system over that of the adult system would dictate the result that the juvenile not be entitled to a jury trial. This result opens an administrative back door into adult prison.
*432The majority states, "[t]he nature of incarceration remains juvenile regardless of the custody venue.” Majority at 419. However, the transfer statute allows a juvenile adjudicated in the juvenile system to then be incarcerated in a DOC adult facility. This is not a juvenile incarceration as defined by statute and our previous cases. Further, the parties stipulated to the fact Monroe will not be segregated from adult inmates and there are no rehabilitative programs at DOC that are. designed for juveniles. Stipulated Facts 6, 7 (Clerk’s Papers at 320).
The majority also states, "the juvenile retains the rights, protections, and benefits inherent in the juvenile justice system no matter where he is incarcerated.” Majority at 421. I cannot support this proposition. By placing a juvenile who has never been convicted of a crime into an adult prison without the attendant right to a jury trial, the juvenile loses all rehabilitative focus of the juvenile system. He is, instead, placed under the adult system’s focus of punishment.
If juveniles can be administratively transferred into adult prisons to serve out their juvenile sentences, the ju? venile justice system loses its separate identity. RCW 13.40.280 violates the fundamental right to a jury trial. I dissent.
Dolliver, Smith, and Alexander, JJ., concur with Johnson, J.
The eight determinative factors are:
"1. The seriousness of the alleged offense to the community and whether the protection of the community requires waiver.
"2. Whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner.
"3. Whether the alleged offense was against persons or against property, greater weight being given to offenses against persons especially if personal injury resulted.
"4. The prosecutive merit of the complaint, i.e., whether there is evidence upon which a Grand Jury may be expected to return an indictment (to be determined by consultation with the United States Attorney).
"5. The desirability of trial and disposition of the entire offense in one court when the juvenile’s associates in the alleged offense are adults who will be charged with a crime in the U. S. District Court for the District of Columbia.
"6. The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation, emotional attitude and pattern of living.
“7. The record and previous history of the juvenile, including previous contacts with the Youth Aid Division, other law enforcement agencies, juvenile courts and other jurisdictions, prior periods of probation to this Court, or prior commitments to juvenile institutions.
“8. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile (if he is found to have committed the alleged offense) by the use of procedures, services and facilities currently available to the Juvenile Court.” Kent, 383 U.S. at 566-67 (App. to Op. of the Ct.).