dissenting:
I respectfully dissent.
This case can be put in better perspective if we recognize that the legislature has created three classes of offenders for purposes of this case. The first group is adults. An adult who possesses not more than one ounce of marihuana commits a class 2 petty offense which is punishable by no more than a $100 fine. § 18-18-106(1), 8B C.R.S. (1986). An adult offender cannot be placed on probation or *865receive any more serious penalty. § 16-11-201(1), 8A C.R.S. (1986).
Juveniles are divided into two classes depending on the child’s age at the time when a final disposition is reached in each case. Some but not all of the possible dispositions are quoted in the majority opinion at pp. 859-860. The Children’s Code generally defines a juvenile or “child” as “a person under eighteen years of age.” § 19-1-103(3), 8B C.R.S. (1986). The juvenile court, however, retains jurisdiction over an individual who was under the age of 18 when the offense was committed but who is 18 years of age or older when a disposition is reached in his case. Such persons are excluded from the definition of an “adult” in section 19-1-103(2), 8B C.R.S. (1986). M.C. falls into this third category which I will refer to as “18 year olds.”
This case comes before us because our statutes provide dispositional alternatives for 18 year olds which differ from those applicable to either adults or other juveniles. In the case of possession of less than one ounce of marihuana, 18 year olds are subjected to significantly harsher penalties than either other group because they alone may be sentenced to county jail for up to 180 days. § 19-3-113(l)(d), 8 C.R.S. (1976).1 An 18 year old also may be placed on probation and, if his probation is revoked, he may be committed to the department of institutions, § 19-3-113(l)(c), 8B C.R.S. (1986), or sentenced to county jail for up to 180 days. § 19-3-117(3)(e), 8B C.R.S. (1986). M.C. was placed on probation for two years and thus faces county jail time if his probation were revoked.
Numerous cases have upheld the constitutionality of juvenile or young offender systems which provide substantially different or longer periods of confinement for juveniles or young offenders. See, e.g., United States v. Lowery, 726 F.2d 474 (9th Cir.1983) (no equal protection violation when defendant received longer sentence under Youth Corrections Act than defendant could have received as adult), cert. denied, 469 U.S. 837, 105 S.Ct. 133, 83 L.Ed.2d 73 (1984). The rationale of these cases is based on the state’s special responsibilities for juveniles and the rehabilitative nature of the programs available to juveniles while they are confined. See generally S. Davis, Rights of Juveniles: The Juvenile Justice System § 1.2 (2d ed. 1988) (philosophical underpinnings of juvenile law include idea that children capable of rehabilitation through parens patriae power of the state).
In the Matter of L.M., 432 A.2d 692 (D.C.App.1981), for example, involved a factual situation very similar to the case now before us. L.M. was tried and convicted as a juvenile of smoking on a city bus. An adult who committed this act faced no more than a $50 fine whereas L.M. was placed on probation for one year. The District of Columbia Court of Appeals rejected L.M.’s equal protection claim and held, using a rational basis analysis, that the different treatment of juveniles was justified by “the strong governmental interest in determining the treatment required to rehabilitate youthful offenders, and in ‘avoidpng] treatment of juveniles as adult criminal defendants to the extent practicable.’ ” 432 A.2d at 694 (citations omitted) (quoting District of Columbia v. P.L.M., 325 A.2d 600, 604 (D.C.App.1974)).
Courts have been careful to ensure the existence of a rehabilitative purpose before upholding a statutory scheme which provides harsher treatment for juvenile offenders. E.g., United States v. Ballesteros, 691 F.2d 869 (9th Cir.1982) (no equal protection violation when youth offender received longer sentence than adult offender would receive, provided that longer sentence serves a rehabilitative purpose), cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983). See also State v. Rice, 98 Wash.2d 384, 655 P.2d 1145, 1158 (1982) (“[Tjhere is no rational reason for sentencing juvenile offenders to longer terms of incarceration than could be imposed on adults convicted of the same offense, unless the basic theory ... is rehabilitative.”).
*866In my view, this statutory scheme breaks down when it authorizes 18 year olds who have been adjudicated as juvenile offenders to be incarcerated in county jail. Jail time is not a disposition which may be applied to other juveniles. People v. A.F., 192 Colo. 207, 557 P.2d 418 (1976). Ordering a child sentenced to jail is inconsistent with the strong public policy expressed in other parts of the Children’s Code that children should not be incarcerated with adults. See, e.g., § 19-2-103, 8B C.R.S. (1986) (concerning detention and shelter of children). As one court noted, confinement of juveniles to adult jails “may well contribute to crime rather than reduce it.” M.L.N. v. Greiner, 360 S.E.2d 554, 559 (W.Va.1987) (quoting R.C.F. v. Wilt, 162 W.Va. 424, 252 S.E.2d 168, 171 (1979)). No one here has argued that jail serves any rehabilitative purpose for the 18 year old. Indeed, the People concede that jail time is “purely punitive.”
Two state courts which have examined the issue of the propriety of sentencing juvenile offenders to adult jails have found such statutory schemes impermissible. In M.L.N. v. Greiner, 360 S.E.2d 554 (W.Va.1987), the West Virginia Supreme Court considered a statutory scheme which provided that youth offenders who remain under the continuing jurisdiction of the juvenile court after turning age 18 could be incarcerated in county jails with adult prisoners. Applying a due process analysis, the court held that incarcerating juvenile offenders in an adult jail is not rationally related to the rehabilitative purpose of the juvenile system. M.L.N., 360 S.E.2d at 559. See also State v. Grady, 3 Ohio App.3d 174, 444 N.E.2d 51 (1981) (incarcerating youth offender in jail or other adult facility is contrary to rehabilitative goal of juvenile system). In Grady the court concluded that it was impermissible to sentence an 18 year old who had committed an offense as a juvenile to an adult jail unless the court found that housing was unavailable in an appropriate juvenile facility or that the public safety so required. Grady, 444 N.E.2d at 54.
I agree with Grady that there may be special circumstances justifying the transfer of a juvenile offender to an adult correctional facility. That, however, would require a particularized determination of need, a requirement which is not present in the statute now before us. Compare § 19-3-113.2(2)(c), 8B C.R.S. (1986) (allowing aggravated juvenile offenders who are over 18 years of age to be transferred to the custody of the Department of Corrections “only upon a finding by a preponderance of the evidence that the child is no longer benefiting from the programs of the department of institutions.”).
Because there is no rehabilitative purpose for sentencing an 18 year old to jail, the rationale supporting different treatment of juveniles and adults is not present. There is no rational basis for incarcerating 18 year olds in an adult jail when an adult does not face incarceration for the same offense. In my view, People in Interest of A.L., 713 P.2d 934 (Colo.Ct.App.1985), was correctly decided. I would hold that an 18 year old juvenile offender cannot be sentenced to jail either directly or as a result of a probation revocation when the 18 year old is found to have possessed less than one ounce of marihuana.
. Current law permits sentencing 18 year olds to community corrections as well as to county jail for the same period. § 19 — 3—113(l)(d), 8B C.R.S. (1986).