dissenting:
This is the first reported decision I have found in which an Illinois reviewing court has reversed a juvenile court judge’s decision that a minor should not be prosecuted as an adult. In People v. Martin (1977), 67 Ill. 2d 462, this court held that the State may appeal' the denial of its petition to have a minor transferred from the juvenile justice system and tried as an adult. When the case reaches this court, the question is not “Should this juvenile be tried as an adult?” The only issue is whether the trial judge abused his discretion in reaching his decision, irrespective of what that decision was. (People ex rel. Davis v. Vazquez (1982), 92 Ill. 2d 132, 141.) This position is entirely consistent with this court’s treatment of the doctrine of abuse of discretion in all other cases, civil or criminal, adult or juvenile, pertaining to guilt or sentencing. How many times has this court stated that no matter whether we would have reached a conclusion opposite to that of the trial judge, our task is not to substitute our judgment for his? As long as the record supports the conclusion that the judge was guided by the factors mandated by statute, this court should not disturb his decision.
, Contrary to what the State would have us believe, the record before us does not reveal a case that is so overwhelming under the statute that it requires that the juvenile be tried as an adult. Our personal reactions should not govern the outcome. We can look to only two sources for our decision: the statute and the record.
Section 2 — 7(3Xa) of the Juvenile Court Act lists six factors which the trial judge must consider in exercising his discretion. (Ill. Rev. Stat. 1981, ch. 37, par. 702 — 7(3Xa); see People ex rel. Davis v. Vazquez (1982), 92 Ill. 2d 132, 141-42.) Considering the record as a whole, there is ample support for the trial judge’s finding that the interests of the juvenile and of society would be best served if this minor remained within the juvenile justice system. The majority argues persuasively that there is also ample evidence that he could have been tried as an adult. But that is precisely the point. The very heart of the notion of discretion is that only one judge is to exercise it. The statute here leaves the decision to the juvenile court judge. It is he who is in the best position to evaluate the six statutory factors, he who is best able to weigh both the interests of society and the interests of the juvenile, he who is most familiar with the differences in the programs and resources of the juvenile and adult systems. It is also he who is best able to evaluate the demeanor and credibility of the witnesses who testify at the transfer hearing. This case is a difficult one, but when there is conflicting evidence the decision must remain where the legislature placed it, with the juvenile court judge.
No matter how we deplore the events which occurred, we cannot substitute our judgment for his. This case is a good example of the difficult decisions a trial judge must make. Questions of abuse of discretion seldom arise in easy cases; they arise only when the evidence supports more than one view.
This court has never elucidated the standard to be applied in evaluating a juvenile judge’s exercise of discretion in a juvenile-transfer decision. Respondent directs us to available approaches. Whichever of these the court applied, I would find that the judge here did not abuse the discretion vested in him. In Peek v. United States (9th Cir. 1963), 321 F.2d 934, 942, an abuse of discretion was said to occur only when the trial judge’s decision was “arbitrary, fanciful or unreasonable,” or “only where no reasonable man would take the view adopted by the trial court.” Is it not obvious not only that reasonable men can differ, but that here they have differed? The trial judge and two justices of our appellate court found evidence to support a denial of the transfer order in light of the six statutory factors listed in section 2 — 7(3)(a). Or, we can, following a different approach, regard a review for abuse of discretion as an evaluation not just of an ultimate decision, but of the process of reasoning used to arrive at that decision (cf. In re D.H. (1977), 76 Wis. 2d 286, 251 N.W.2d 196; Commonwealth v. Mayer (1982), 497 Pa. 643, 646-48, 444 A.2d 101, 103). Relying on this standard, I again find no abuse. The record contains evidence relevant to each of the six factors enumerated in section 2 — 7(3)(a), and it is to those factors that I now turn.
The first factor is whether there is sufficient evidence upon which a jury may be expected to return an indictment. Although in this case this is the clearest of the six factors, even it is not cut and dried, and we should not rush to conclude that only one decision is possible. I agree with the appellate court that “it is clear that there was sufficient evidence to support an indictment of the respondent for murder” (109 Ill. App. 3d 790, 794). However, the question is not whether the facts could support an indictment for murder, but whether a grand jury may be expected to return an indictment. I cannot agree with the majority’s assertion that “[t]he respondent never argued that point since he had made a written statement to the police admitting the killings and there were at least three eyewitnesses to the crime.” (101 Ill. 2d at 85.) Respondent admitted the shooting; he did not admit to murder. The eyewitnesses witnessed a homicide; however, the law characterizes many forms of homicide as justifiable or as a lesser crime than murder. (See, e.g., People v. Alejos (1983), 97 Ill. 2d 502.) “Murder” is a legal conclusion. Respondent’s trial counsel argued vigorously before the trial judge at the probable-cause hearing that a grand jury might find sufficient legal provocation for respondent’s conduct to view it as self-defense. In stark contrast to the State’s portrait of a lawless and uncontrollable individual bent on violence and destruction of human life, the record contains evidence supporting the characterization of respondent as a physically small youth who had been harassed and abused over a period of time by the victims here — older, bigger, and stronger members of a street gang which he refused to join. On more than one occasion respondent had been beaten and had once been pistol-whipped by them. On the night before the fatal incident, respondent’s mother had telephoned the police to complain that the Jacksons were “beating up on” her son; this was established by the admission of the police file tape of that phone call into evidence. Had the police responded to the mother’s call for help, perhaps what followed might not have taken place.
Respondent had reason to fear the Jacksons. He knew they used deadly weapons — they had harmed him with those weapons before. He asked “Tookie,” an older friend, to tell the Jacksons to leave him alone. He waited outside while “Tookie” talked with the Jacksons, and he fired only after he saw one of the Jacksons coming toward him with a stick, and after “Tookie” fired first. In addition, the psychologist’s and psychiatrist’s reports both state that respondent is an immature, impulsive person. Given all of this evidence, a grand jury could have returned an indictment for voluntary manslaughter instead of for murder. Whatever the grand jury would have done, as we now review the trial judge’s exercise of discretion, we know that the judge had before him evidence on both sides of this issue.
Many of the same facts are relevant to the second statutory factor: Was the alleged offense committed in an aggressive and premeditated manner? I agree with the appellate court that the trial judge could have concluded that these were not premeditated killings (109 Ill. App. 3d 790, 794). The majority emphasizes respondent’s statement that he went to the laundromat to meet Gregory Jackson to “get revenge.” (101 Ill. 2d at 85.) Considering respondent’s age, his mental capacity, and his immaturity, as well as his past experiences with these victims, this statement is far from a clear indication that he planned to kill either one of the Jacksons. To a child-like mind, revenge could mean any of a number of things. As respondent’s juvenile record indicated, he had a history of property crimes, not of violent behavior directed at other human beings. The psychiatric, psychological, and social reports taken together described him as a passive individual, a follower, and as impulsive. The trial judge could have concluded that this is not the kind of individual who plans and executes cold-blooded murder.
Respondent had reason to fear Gregory Jackson, who had treated him brutally and had not responded to repeated pleas to leave him alone. At the time of these tragic events, respondent was 15 years old and stood only five feet tall. Gregory Jackson was 18 ycL : j old and was approximately six feet tall, Vincent Jackson was 20 years old and was approximately five feet, nine and one-half inches tall. Both Jacksons were members of a street gang called the Q-dogs, and had harassed respondent for refusing to join that gang.
It is true that respondent had a gun with him when he went to “get revenge,” but there is no evidence that he planned to shoot either of the Jacksons. Since Gregory Jackson had been armed when he had harassed respondent on previous occasions, respondent might have believed that Gregory would be less vicious toward him if Gregory knew that this time respondent was also armed, and could strike back if Gregory attacked him again. The record reveals that respondent did not go into the laundromat brandishing his gun and threatening anyone. He waited outside while his older friend “Tookie” went inside to “talk to the dude.” None of the eyewitnesses saw respondent’s gun before the Jacksons emerged from the laundromat. Respondent told the police that Gregory Jackson came toward him with a stick. Under these circumstances, the respondent could have believed that it was necessary to act in self-defense. There is no dispute that respondent did not fire until after “Tookie” fired at Gregory Jackson. The judge could conclude that this was not premeditated murder but the confused reaction of a young and immature adolescent who asked an older friend to help him out of a situation he could not handle himself, and found himself facing two tough gang members whom he knew from experience would not hesitate to hurt him.
What did respondent mean when he took the gun and stated that he was going to get “revenge”? It is unclear from the record whether respondent brought the gun or whether “Tookie” provided it for him after “Tookie” suggested, “Let’s gun up.” There is no evidence that respondent owned or had access to any gun prior to this incident. Even assuming that the trial judge believed that respondent meant to get revenge with the gun, this does not mean that he intended to kill the Jacksons. Assuming the worst case, that respondent’s immature mental and emotional processes led him to seek an “eye for an eye,” the judge could logically conclude that respondent meant to get revenge by using the gun to pistol-whip Gregory Jackson as Gregory had done to respondent.
The professional opinions make it clear that this respondent did not customarily plan his actions in advance. He is described as a follower, and as one whose ego development never progressed beyond an early stage. The ability to plan does not usually emerge until a late stage of ego and cognitive development. The professional reports indicate that respondent reacts to events without much forethought and in an immature and impulsive manner. Psychological test results, achievement tests, and poor academic performance all confirm his limited intellectual abilities, further increasing the likelihood that the trial judge could conclude that the respondent was not likely or even able to develop a sophisticated or intricate plan for revenge. While it might seem obvious to many persons that anyone who takes a gun and seeks out a known troublemaker must have at least planned for the eventuality that he might have to use the gun, as judges we cannot assume in advance of trial that respondent thinks, reasons, and reacts as they would. To the contrary, the picture which the professionals paint of the respondent is of one who lives for the moment, reacts on the instant, and did not, perhaps could not, premeditate. Considering all of the information available to Mm, the trial judge could have concluded that these killings were not premeditated, at least as far as the respondent was concerned. After considering the evidence, the judge noted that “[it] looks to me that the two victims were taking advantage of [respondent] and I believe that ‘Tookie’ used him ***.”
The third factor in section 2 — 7(3)(a) is age. In In re Burns (1978), 67 Ill. App. 3d 361, the appellate court refused to rule that the trial judge had abused Ms discretion by denying a similar transfer order for another 15-year-old juvenile. Respondent M.D. was also 15. His life, too, like Myra Bums’, had been a series of unfortunate experiences against a backdrop of a chaotic environment. The probation officer, testifying for the State in tMs case, called attention to the instability of respondent’s environment. The majority attempts to distinguish tMs respondent from the juveniles in In re Burns and In re R.L.L. (1982), 106 Ill. App. 3d 209, apparently on the grounds that those juveniles were seriously mentally disturbed, implying that M.D. was not. TMs “distinction” is belied by the mental health reports in evidence, and will be discussed in connection with the fourth and fifth statutory factors.
TMs would be a different case if respondent were two or three days away from the statutory majority. He was not. He was only 15, and while the statute permits Ms trial as an adult, it also directs that Ms age be factored into that decision. Try as I may, I cannot see the relevance of the majority’s emphasis on the facts that “[respondent admitted drinking alcohol until he was intoxicated, using marijuana, and enjoying sex with two different girl friends,” as indicating maturity or fitness for trial as an adult (101 Ill. 2d at 86). While I do not condone such behavior, section 2 — 7(3)(a) does not direct judges to inject their morals or their personal values into tMs decision. Unfortunately, from what I read, I conclude that the use of marijuana and alcohol and sexual promiscuity are rampant among the patrons of the juvenile court, and among a large number of other teenagers as well. If anything, engaging in this type of conduct indicates to me immaturity rather than maturity. This conduct may be an offense in its own right, but respondent is not charged with any offenses of this kind. Such behavior is not a basis for distinguishing between juvenile offenders who are tried as adults and those as juveniles. This kind of behavior is not mentioned in section 2 — 7(3)(a) as a test of whether a minor should be tried as an adult. My guess is that juvenile courts would have little to do if it were.
The 1982 statute requiring 15-year-olds charged with certain crimes such as murder to be tried as adults (Pub. Act 82 — 973, eff. Sept. 8, 1982, 1982 Ill. Laws 2458, Ill. Rev. Stat., 1982 Supp., ch. 37, par. 702 — 7(6)(a)) is also irrelevant. The offense charged here took place before the effective date of that enactment. The actions of a later legislature cannot control our decision in this case. It is equally irrelevant that “other 15-year-olds charged with crimes less serious than murder have been tried as adults in the past.” (101 Ill. 2d at 86.) People v. Underwood (1978), 72 Ill. 2d 124, a case cited by the majority, was a case in which the trial judge ordered the transfer, and this court affirmed that exercise of discretion. (101 Ill. 2d at 86.) Here, however, the question is not whether these facts would support a decision to try this respondent as an adult, as in Underwood. Rather, the question is whether the juvenile court judge abused his discretion in deciding not to transfer this case to the Department of Corrections under the statute operative at that time and the totality of facts and circumstances as they reasonably appeared to the trial judge.
The fourth factor is the previous history of the minor. I do not agree that the minor’s eight prior station adjustments “speak for themselves.” (101 Ill. 2d at 86.) Station adjustments are police matters on which no further legal action is taken. They require no showing that respondent was actually guilty of anything. The majority of the station adjustments which concerned the respondent, while serious, were for property-related crimes: burglary, theft, possession of stolen property, and attempted theft. Further, although the juvenile court judge may consider station adjustments, he is also entitled to give them the weight he believes they deserve. The respondent has no history of crimes against individuals, except one unexplained station adjustment for battery, and no history of the possession or use of weapons of any kind. This record is consistent with the information in the social, psychological, and psychiatric reports. The trial judge could have concluded that respondent is the sort of individual who will become violent if provoked, but who will not seek out confrontation.
The testimony of Vergus Hurks, respondent’s probation officer, is extremely important. Although a State’s witness, Mr. Hurks refused to be led by the State’s suggestive questioning. Respondent was on probation for one year on his only prior adjudicated charge, a burglary. Mr. Hurks said at various points that he believed respondent was still in an “adolescent formative state,” that he “showed respect” to his probation officer, and that he was “immature” and “impulsive.” Most important, Mr. Hurks stated he did not get the impression that respondent was proud of these killings, and that in the probation officer’s opinion, respondent had rehabilitative potential.
Respondent’s history also includes the following circumstances: His parents were separated in 1977. He was a member of a large family which may or may not have had a male role model present. He resided in a housing project in which delinquency was rampant. His mother could not or did not control him. His school performance and attendance were chronically poor. He had been harassed by gang members for refusing to join a gang, and he was unable to defend himself against gang threats or physical violence. The gang situation was so bad in the neighborhood that the mother of another boy who had also been harassed by the Jacksons sent the boy to Mississippi to get him away from them.
Evidence of respondent’s history and emotional and psychiatric problems is properly considered in conjunction with his age. (See In re R.L.L. (1982), 106 Ill. App. 3d 209; In re Burns (1978), 67 Ill. App. 3d 361, 365-69.) I have detailed respondent’s emotional and intellectual problems throughout this dissent, and I will not repeat them. I do, however, point out that while the probation officer, the psychologist, and the psychiatrist used different technical terms to describe respondent, all three emphasized his severely delayed personality development, his impulsivity, and his limited intellectual capabilities. The psychologist, Dr. Kimberly Merrill, was the only one of the three professionals to do extensive intellectual and personality testing. On the basis of the detailed information provided by these tests, Dr. Merrill was concerned about respondent’s lowered mental capacity and the abnormal personality development. All three professionals used terms of art which effectively described respondent as seriously disturbed and in need of immediate, intensive, long-term treatment.
Fifth is the question whether there were facilities available to the juvenile court for the rehabilitation and treatment of the minor. Despite the contradictions elsewhere in the record, this point is clear. Mr. Hurks, a juvenile probation officer familiar with this respondent, as well as with the facilities available, and with respondent’s experience with those facilities in the past, stated that respondent had rehabilitative potential. Dr. Merrill wrote, “At this point he is still very much a blank slate, and the next four or five years are therefore critical to the eventual formation of his personality. If he is placed in a brutal and hostile environment, he has none of the ego resources which will allow him to withstand the character molding effects of these influences.” Further, “[h]e needs structure, limits, and firm moral instruction. Long term residential placement is recommended, and [respondent] needs to understand that he can expect punishment for wrongdoing. It should be emphasized that the moral environment provided by this placement will play a critical role in the development of [respondent’s] emerging personality.” Dr. Jaime Trujillo, a psychiatrist who examined respondent and prepared a written report, said, “He hasn’t been too able to learn and he seems to have some limitations as far as intelligence *** which makes him an easy prey for persons who could socialize with him and try to induce him into certain criminal activities without him having full understanding ***. I feel that he should be contained at the present time and that ideally he should be treated in a closed secured environment where good disciplinary measures are imposed upon him ***. In this placement he should have education aimed to overcoming his learning difficulties. There he should have individual therapy to try to deal with his lack of values and self-centeredness.”
Together the three professionals describe a youth who is limited intellectually and has thus far been unable to benefit from either his family or school environment. At the same time, all three note that his personality and his intelligence are still developing. All see some possibility for change, for development of a mature personality and of his fullest intellectual potential, whatever that is, if, and only if, he receives immediate and intensive professional help in several areas. He requires extensive remedial education, intensive individual psychotherapy, removal from the chaotic and threatening environment with which he cannot cope and the influence of hardened criminals who will turn him to their own purposes, and long-term residential placement in a highly structured environment in which a systematic pattern of rewards can be used to influence and redirect his behavior. The professionals stress the seriousness of respondent’s problems, and the irreversible harm that would be done by returning him either to the streets or to a hostile, threatening environment. From these consistent descriptions of respondent’s personality and intellectual abilities, the trial judge could conclude that the apparatus of the juvenile court system was particularly well suited for the rehabilitation and treatment he required and for shaping personality development which offered the only chance for the respondent to become a useful and nonviolent member of society. All three reports seem to agree that, whatever he is now, placing respondent in a penitentiary would insure that he emerged a criminal. On the other hand, the trial judge could conclude from the evidence that respondent could benefit from placement in the type of highly structured residential treatment facility which is available to the juvenile division.
The majority implies that because respondent failed his classes while he was in detention and did not keep his appointments at an outpatient mental health center, the respondent has shown that he “could not really benefit from the programs which are particularly available to the juvenile court system.” (101 Ill. 2d at 87.) On the basis of the facts set out above, the trial judge could conclude otherwise. Respondent may have failed his classes because of his limited mental abilities, or because the educational programs at the detention facility were not highly structured enough, or not geared to his current level of functioning. It would not be at all surprising that an adolescent performing, as respondent was, at a second- to fourth-grade level would fail classes geared to his chronological age of 15. In light of his mother’s inability to control him, it also is not surprising that he failed to attend outpatient sessions which he had to get to on his own. The programs available to individuals in 24-hour residential treatment are more intensive and, since they are provided on a frequent and regular basis, they cannot be avoided by failure to show up. The trial judge could have concluded that, although respondent had not been able to utilize the sporadic services provided while he was still subject to the negative influences of the gangs and his disordered home environment, he might benefit from the intensive services available in a structured living situation.
The final statutory factor is whether the best interest of the minor and the security of the public require that the minor continue in custody or under supervision for a period extending beyond his minority. None of the professionals hypothesized as to how long it would take for respondent to change appreciably; all said that he required intensive, long-term intervention. Respondent could remain in juvenile facilities until the age of 21. Since he was 15 at the time of the transfer hearing, that would have been placement for five to six years, which appears to be long term, considering the usual length of psychiatric and psychological inpatient treatments. There is no indication in any of the reports that respondent would need confinement beyond the age of 21. The judge could have concluded that the best interests of the minor did not require transfer to the adult system for that reason.
What of the best interests of the public? To this point, I have focused, as the statute directs, on the interests of the juvenile. However, I believe the juvenile court judge here could have concluded that society, too, is best served by retaining the respondent in the juvenile system. Since the professionals agreed that a hostile environment would be harmful to the respondent, the judge could infer that the result of a jail sentence would be to increase the respondent’s tendency to violence, and thus make him more dangerous to society when he was released than he was at the time of the hearing. By contrast, he stood a chance to benefit from the structured, intensive programs available in the juvenile division. If he became less likely to commit future crimes, society would benefit.
If the State’s Attorney actually believed that the security of the public required respondent’s immediate confinement, I do not believe he would have pursued the appeal to this court. After the appellate court affirmed the juvenile court, the State’s Attorney could have chosen to proceed in the juvenile court, with the strong likelihood that the respondent would have been adjudicated a delinquent and detained in a juvenile facility many months ago. Instead, the State’s Attorney chose to pursue this appeal, thus returning respondent to the streets during the pendency of the appeal. Respondent has been at liberty instead of confined in a juvenile detention facility at least since the appellate court decision in this case more than a year ago. The State’s Attorney has not brought to the attention of this court that the respondent has committed any violent crimes during the period he has been at large while this appeal has been pending.
Moreover, the juvenile court judge might have anticipated, on the basis of the evidence placed before him, that even though the defendant was charged with murder, the likelihood was that he would be convicted of a lesser crime. In that event, the juvenile court judge could have been troubled by the possibility that a criminal court judge might treat respondent leniently because of his age. By committing the respondent to a juvenile facility, the juvenile court judge knew that the respondent would be confined there for the period of his sentence, which the judge himself could fix with the security of the public in mind.
The majority states that “lack of intelligence and immaturity of personality in the commission of such a heinous crime does not entitle the respondent to the extraordinary protection and consideration of the juvenile court system.” (101 Ill. 2d at 88.) I disagree on two grounds. Based on everything in the record, it would appear possible to conclude, as the trial judge apparently did, that respondent was precisely the kind of individual for whom the juvenile system was designed. Even if the judge did not think along quite these lines, certainly “low intelligence and immature personality” are not reasons to deprive an individual of the protections of the juvenile system. Are we now going to lock up the mentally retarded and psychologically infirm as was done in the nineteenth century? The majority’s underlying concern appears to be the heinous nature of the crime. I, too, deplore the senseless loss of life in this case. Nevertheless, the statute in effect at the time did not allow the nature of the crime to be the sole element in a transfer decision. As I have pointed out above, the 1982 version of section 2 — 7(3)(a), under which a 15-year-old charged with murder would be tried as an adult, is irrelevant to this case. The trial judge was bound by the then current statute to consider all six enumerated factors, and to use his own discretion in deciding how much weight to give to each. I respectfully submit that the judge here did not abuse his discretion. The trial judge did not accept the State’s Attorney’s argument that “[njaturally, he has to consider a murder charge. Take that away no one would ask that he be transferred.” Indeed, if the judge had allowed the charge alone to control his decision in the way the prosecutor suggested he should do, he would have abused his discretion for he would have delegated it wholesale to the State’s Attorney.
Having reviewed the record, I am not persuaded by the State’s unsubstantiated suggestion that the juvenile court judge did not consider the statutory factors and perhaps did not read the written reports. The judge’s remarks during the hearing demonstrate that he gave his attention to the six factors and to the input provided by the social, psychological, and psychiatric reports. When the State’s Attorney asked the probation officer to testify to the contents of one of the reports, the judge said, “The clinical will speak for itself. I will read these overnight, and I will decide tomorrow morning.” And again, “You are asking the social worker to interpret the psychologist’s report that I am going to read myself.” When the judge ruled, he said: “Looks to me that the two victims were taking advantage of [respondent] and I believe that ‘Tookie’ used him, perhaps to put him to work for him. And the mind — the understanding of the mind is such, I think, that he needs the services of the Juvenile Court System ***.” (Emphasis added.) The State’s Attorney who participated in the hearing had no doubts that the trial judge was familiar with the mental health evidence. When he moved to have the reports preserved in the record for appeal, he said, “[A]s Your Honor knows, during the course of the hearing we heard from and saw both the social investigation, psychiatric, and the clinical.”
I end as I began by pointing out that this court should not substitute its judgment for that of the tribunal charged with the responsibility of fact finding when a factual basis supporting its decision appears in the record. I therefore conclude that there has not been a sufficient showing of abuse of discretion to warrant reversal.