dissenting:
D.W., the juvenile defendant in this case, engaged in the adult activity of driving a car. As a result of his negligence behind the wheel, a man is dead. Under the circumstances, I believe that the imposition of a $500 fine is both appropriate and authorized under the plain language of 5 V.I.C. §§ 2501, 2521 and 2524.1 would therefore affirm the holding of the Appellate Division in all respects. Because the majority will not, I respectfully dissent.
The Family Division of the Territorial Court is authorized to impose "appropriate" sanctions upon juvenile offenders. 5 V.I.C. § 2501(c) and (h). Conditions of probation, which may be imposed at the court's discretion, are specifically delineated at 5 V.I.C. §§ 2521 and 2524(b), and are to be "liberally construed" to affect an appropriate balance between treatment and sanction pursuant to the stated policy of the Virgin Islands. 5 V.I.C. § 2501(c) and (h). Indeed, as summarized by the majority, several correctional alternatives, in addition to the fine at issue, were imposed by the Family Division judge upon D.W., including "commitment to his mother's custody, § 2521(b)(1), placement on probation, § 2521(b)(2), and performance of 500 hours of community service, § 2524(b)(14)." Maj. Op. typescript at 5, and see Appendix A to this opinion.
Because the Virgin Islands Code does not expressly enumerate the imposition of fines among correctional alternatives, however, the majority concludes that a fine is simply unavailable as a sanction in juvenile offender cases. The majority opinion, without citing to any authority other than the language of the statute itself, states that § 2501 "only authorizes the judge to choose among sanctions set forth in the statute (5 V.I.C. §§ 2521 & 2524), which do not include fines." Maj. Op. typescript at 4.1 disagree. Although the majority correctly cites 5 V.I.C. § 2524(b) as providing a list of the conditions of probation that a Family Division judge may impose upon a minor, the majority opinion misconstrues the sixteenth paragraph of § 2524(b), a "catchall" provision which provides, *305"The court may as a condition of probation require that the child ... comply with such other lawful conditions as may be ordered by the court. 5 V.I.C. § 2524(b)(16) (emphasis added). This provision alone grants ample authority for the imposition of an additional sanction — a monetary fine measured by the seriousness of the offense committed. Indeed, what other possible reason could there be for such a catchall phrase if not to permit and authorize a judge to expand upon the earlier fifteen identified conditions specified in the statute?
Thus, pursuant to the plain language of the statute, a Family Division judge is authorized to implement "other lawful conditions" which are not expressly identified in the Code, but which may be appropriate under the circumstances of any particular case. As I read the broad, inclusive language of § 2524(b)(16), it allows for just the sort of probationary condition or sanction at issue here— i.e., a $500 fine that, under the circumstances, is entirely appropriate, but which is not explicitly included among the first fifteen paragraphs of § 2524(b).
Contrary to the view expressed by the majority, Maj. Op. typescript at 5-6,1 am of the opinion that this "catchall" clause has been inserted into the Code for the very purpose of affording a Family Division judge just the kind of flexibility12 that would allow for the imposition of a sanction which, although not listed among the previous fifteen specifically delineated conditions of probation, could nevertheless prove a valuable tool in achieving the balance between treatment and sanction in accordance with the stated goal of the Virgin Islands' "Children's Policy." 5 V.I.C. § 2501(c).
Nor do I accept the majority's position that, taken to its extreme, the logic of the above analysis could be used to justify the imposition of any sanction, no matter how absurd, inappropriate or excessive, that a court might visit upon a minor. In my view, the language of § 2524 is clearly tempered not only by due process concerns but by the Virgin Islands Code itself which provides, "[sanctions will be imposed in a manner that is appropriate to the seriousness of the offense." 5 V.I.C. § 2501(c). Clearly, this limitation would foreclose a judge from imposing a fine of "any amount" *306or imposing an outrageous penalty, as is apparently a concern of the majority.13 See Maj. Op. typescript at 5, n.4.
The majority maintains that a fine cannot be a condition of probation because it is not an alternative explicitly enumerated in 5 V.I.C. § 2524, and because § 2524(b)(16) limits the court to conditions that constitute an ongoing sanction or a direct regulation on conduct linked to probation. It also claims that imposing a fine would violate fair warning of what the law intends to do if "a certain line is passed." See Maj. Op. typescript at 6.
Such a cramped interpretation, however, gives no effect to the expansive content of § 2524(b)(16) which permits a judge to require a juvenile to comply with such other lawful conditions as may be ordered by the court. Nor is there any authority cited by the majority which restricts the operation of § 2524(b)(16) to conduct regulations such as compliance with curfews, Maj. Op. typescript at 6. The illustrations contained in § 2524(b)(16) pertaining to controlled substances and alcohol are by no means exclusive. Hence, there is no reason or authority to exclude from the scope of § 2524(b)(16) the imposition of a fine on a juvenile.
On the contrary, as the Supreme Court explained in a different but analogous context, a fine may properly be imposed under the Youth Corrections Act, 18 U.S.C. 5010(a) (repealed), despite the failure of that Act to provide for fines as a condition of probation. The Court, in so holding, emphasized that a hallmark of a successful rehabilitation treatment program for juveniles is flexibility in choosing among programs tailored to individual needs, Durst v. U.S., 434 U.S. 542, 545 (1978) — -the same type of flexibility that the Territorial Court, the Appellate Division, and I have employed in holding that a fine is an appropriate condition of probation under § 2524(b)(16).
While I concede that the legislative history to which the court referred could be deemed to support the Court's holding — a legislative history remarkably silent in the present case — the principle the Supreme Court articulated is every bit as relevant here as it was in Durst:
*307[A] fine could be consistent. . . with the rehabilitative intent of the act. By employing this alternative [a fine and probation], the sentencing judge could assure that the youthful offender would not receive the harsh treatment of incarceration, while assuring that the offender accepts responsibility for his transgression. The net result of such treatment would be an increased respect for the law and would, in many cases, stimulate the young person to mature into a good law-abiding citizen.
Durst v. U.S., 434 U.S. at 553-54.
Moreover, it is inaccurate to state, as does the majority, that no court of the Virgin Islands has utilized § 2524(b)(16) to authorize a fine, see Maj. Op. typescript at 5-6. The very judgment and order of February 3, 1992, entered by the Territorial Court of the Virgin Islands, and affirmed by the Appellate Division, does precisely that although admittedly it does not expressly specify that the action was taken under § 2524(b)(16). A copy of that judgment and order, which reveals the intent of the Territorial Court to specify the various conditions of probation to which it subjected D.W., is annexed hereto as Appendix A to this opinion.
Thus, although Virgin Islands law governing the disposition of juvenile offenders does not single out the specific issue of monetary fines, the Code expressly provides for the imposition of such other lawfull conditions, such as a fine, where the sanction is "appropriate to the seriousness of the offense," and serves the policy goal of striking a flexible balance between treatment and sanctions as described in § 2501(c).
In this case, I believe a $500 fine is, indeed, consistent with the goals of rehabilitation, public safety and deterrence. There is every indication on the record before us that the Family Division judge's decision to impose a fine upon D.W. was well thought out and calculated to impress upon D.W. the seriousness of his offense.14 Such a monetary sanction will not only serve to remind D.W. of the adult nature of his action but may also help to ensure the safety of the travelling public by deterring D.W. from future, life-threatening negligence behind the wheel — to say nothing of, perhaps, requir*308ing D.W. to spend his otherwise free time earning the money required to discharge his $500 fine.15
As the Appellate Division observed in this case, "[t]he offense here, though an accident, resulted in the death of another. It cannot be said that the $500.00 fine constituted an abuse of the judge's discretion . . . ." Appellate Division Opinion at 5. In this regard, I note, as does the majority, Maj. Op. typescript at 7, n.8, that had D.W. been charged as an adult with negligent homicide (the charge to which D.W. admitted his guilt before the Family Division), he would have been subject to a fine of up to $1,000 — in addition to a jail sentence of not more than five years. 20 V.I.C. § 504.
Indeed, even under §§ 2501 and 2524 the Family Division judge could have lawfully required D.W. to be placed in a "facility established for the instruction or residence of persons on probation" until his nineteenth birthday. 5 V.I.C. § 2524(5). Thus the majority opinion would permit D.W. to be taken from his home and placed in the custody of the Territory, but would preclude a judge from fashioning and imposing a monetary sanction, which is far less intrusive and severe. In light of 5 V.I.C. § 2524(b)(16), I cannot see the logic in this result.
III.
Finally, the majority concludes that even if a fine could be justified under the letter of the Code, its imposition would nevertheless be barred as constituting a retroactive increase in penalty prohibited by the Ex Post Facto Clause (Article 1 § 10) of the United States Constitution. The majority cites Helton v. Fauver, 930 F.2d 1040, 1044 (3d Cir. 1991) in support of the proposition that a $500 fine is an unforeseeable judicial construction of the relevant statute and is, therefore, constitutionally impermissible as constituting an "after-the-fact" penalty. Id. at 1045-46.
The Appellate Division properly observed that this issue turns on "whether the lower court's imposition of a monetary sanction, which had never been done before, was an unforeseeable reading of §§ 2501 et seq." Appellate Division Opinion at 4. My argument, *309supra supports the conclusion that the fine here was a foreseeable condition of D.W/s probation. Once again, the Appellate Division's conclusion in this regard was sound: "Although the Family Court had never before imposed a fine on a juvenile, fines are a commonplace and ordinary sanction. The broad language of § 2501 put D.W. on notice that a fine was possible; it was not an unforeseeable penalty." Id. at 5.
The majority itself discusses the commonplace nature of the use of such fines in numerous jurisdictions across the country. In fact, the majority cites statutes from Delaware and New Jersey, both of which expressly provide for the imposition of fines in cases analogous to the one at hand — demonstrating, in my view, not only the commonplace nature of such fines, but also the importance of such fines as a tool in fashioning probationary conditions in juvenile cases. I am therefore of the opinion that sections 2501 and 2524 of the Virgin Islands Code were foreseeably construed by both the Family Division judge and the Appellate Division as authorizing the imposition of a $500 fine in the instant case, thereby foreclosing D.W. from now relying on the Ex Post Facto Clause to shield him from, what is in my view, a lawfull condition of probation.
IV.
Because I believe that a fine of $500 is authorized, foreseeable and appropriate in the context of the instant case, I would affirm the holding of the Appellate Division in all respects. The majority does not, and I therefore respectfully dissent.
JUDGMENT AND ORDER
THIS MATTER came on for a disposition hearing on January 28, 1992, before the Honorable Ive Arlington Swan, Judge of the Territorial Court. The Government appeared through Douglas Dick, Assistant Attorney General, and the minor appeared with counsel, Treston Moore, Esquire. The Court received and reviewed a dispositional summary from the Department of Human Services. The premises considered and the Court being sufficiently advised, it is hereby
ORDERED that David Weibel is adjudicated delinquent on Count I, negligent homicide; and it is further
ORDERED that the minor is placed on probation until his nineteenth birthday; and it is further
*310ORDERED that the minor shall remain in the legal custody of his mother, shall reside with her and shall obey the rules and regulations of her home; and it is further ORDERED that the minor shall perform five hundred (500) hours of community service during his probationary period; and it is further
ORDERED that the minor shall pay a fine of $500.00 within six (6) months of the date of this order; and it is further ORDERED that the minor shall report to the Department of Human Services as often as instructed by his caseworker; and it is further
ORDERED that a copy of this Order be served on David Weibel with copies to Tracy Langford at the Department of Human Services, the Juvenile Bureau, Treston Moore, Esquire, and Douglas Dick, Assistant Attorney General.
See Durst v. U.S., 434 U.S. 542, 545 (1978).
We note that the $500 line imposed is substantially less than $2,000, which a judge is authorized to impose on a juvenile for restitution purposes. 5 V.I.C. § 2524(b)(13).
Indeed, before imposing the fine, the Family Division judge directed counsel to brief the very issue that we face today.
The Supreme Court of Idaho, in affirming a trial court's fine as a condition of probation where the appellant argued that the fine was not reasonably related to the goal of rehabilitation, stated, "The payment of money as a condition of probation is often used to emphasize the seriousness of a defendant's action." Idaho v. Cross, 670 P.2d 901, 903 (Idaho 1983).