(specially concurring).
{51} I agree with the majority that affirmance is appropriate. However, I would take the opportunity to finally determine the standard of proof required to establish that a youthful offender is not amenable to treatment or rehabilitation. I concur in the result the majority has reached as to the Apprendi issue, though I cannot agree with most of the analysis which produces it.
STANDARD OF PROOF
{52} The majority declines to decide which standard of proof is appropriate for the amenability finding. I agree that the two provisions Defendant relies upon in the juvenile code do not support his argument, and I recognize that the majority accurately cites New Mexico ease law on this issue, but I believe it is time to settle the issue.
{53} In our last pronouncement on the issue — In re Ernesto M., Jr. — we rejected a constitutional challenge to Section 32A-2-20 by noting that the current provision gave more guidance than its predecessor, which had also passed constitutional muster. We held that the statute provided “elemental due process” (notice, hearing, assistance of counsel, and a statement of the judge’s decision rationale) and did not address what standard of proof was required. In re Ernesto M., Jr., 1996-NMCA-039, ¶¶6-8, 121 N.M. at 566, 915 P.2d at 322.
{54} That discussion would have been particularly apropos in In re Ernesto M., Jr. in that the defendant there also challenged the manner in which the trial court weighed the statutory factors. In In re Ernesto M., Jr., the trial judge indicated he felt the order of appearance of the seven factors in Section 32A-2-20 suggested they were to be read and weighed in “descending order of importance.” In re Ernesto M., Jr., 121 N.M. 562, 915 P.2d 318, 1996-NMCA-039, ¶ 9. Under this interpretation the most important and weighty factor would be the seriousness of the crime, and so forth. Weighing the factors in this manner has obvious implications for the nature of the inquiry; that is, whether the inquiry broadly speaking will emphasize rehabilitation or punishment. We did not address the issue substantively, finding instead no prejudice to the defendant in the context of that case regardless of how the trial court weighed the factors. I, of course, do not question the result in In re Ernesto M., Jr., but the ease does illustrate that there is a basic uncertainty as to the manner in which trial judges in New Mexico should consider and apply Section 32A-2-20. That uncertainty is exacerbated by failing to provide guidance as to one of the most basic issues in any factual assessment-the standard of proof guiding the fact finder’s deliberations. As the Supreme Court in In re Gault noted: “Juvenile Court history has again demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure.” 387 U.S. 1, 18, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).
{55} A standard of proof has at least two functions: It serves to guide the fact finder as to the level of confidence it should have in its decision and it serves as a means of allocating the risk of error between the litigants. In re Winship, 397 U.S. at 370-71, 90 S.Ct. 1068; Santosky v. Kramer, 455 U.S. 745, 755, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).
{56} By way of illustration, the Supreme Court in Santosky contrasted the bases for the preponderance of the evidence and beyond reasonable doubts standard as follows:
Thus, while private parties may be interested intensely in a civil dispute over money damages, application of a “fair preponderance of the evidence” standard indicates both society’s “minimal concern with the outcome,” and a conclusion that the litigants should “share the risk of error in roughly equal fashion.” [.Addington, 441 U.S. at 423, 99 S.Ct. 1804.] When the State brings a criminal action to deny a defendant liberty or life, however, “the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment.” Id. The stringency of the “beyond a reasonable doubt” standard bespeaks the “weight and gravity” of the private interest affected, id., at 427, 99 S.Ct. 1804, society’s interest in avoiding erroneous convictions, and a judgment that those interests together require that “society imposte] almost the entire risk of error upon itself.” Id., at 424, 99 S.Ct. 1804.
Santosky, 455 U.S. at 755, 102 S.Ct. 1388.
{57} I appreciate the concern the majority expresses concerning the propriety of imposing the criminal beyond a reasonable doubt standard to this particular finding. Amenability is more predictive than historical. It is an attempt to predict the future conduct of the juvenile defendant. Moreover, the statute makes it clear that it is not simply a medical or psychological question. It is a mixed bag of history, potential for treatment, and a straightforward need to protect the public. In addition, by the time the trial court is making the amenability assessment, the juvenile has already been convicted or has pled to criminal conduct making the sentencing necessary. The conviction must occur under the normal beyond a reasonable doubt standard. Thus, by the time of sentencing, the criminal policy objectives noted above have, for the most part, been fulfilled.
{58} Employing the three-part test enunciated by the United States Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), I suggest that the amenability hearing should be determined on a clear and convincing evidence standard. I thus agree with the trial judge here who ruled that clear and convincing was the appropriate standard. The Mathews factors are: (1) the private interest affected by the proceeding, (2) the risk of error created by the State’s chosen procedure, and (3) the countervailing governmental interest supporting use of the challenged procedure. Id. at 335, 96 S.Ct. 893. The aim of Mathews test is to assess what process is due in any given situation. Courts have employed the Mathews test in a variety of situations, including civil commitment proceedings, Addington, 441 U.S. at 418, 99 S.Ct. 1804; termination of parental rights, Santosky, 455 U.S. 745, 102 S.Ct. 1388; worker compensation hearings, United States v. Woods, 931 F.Supp. 433 (E.D.Va.1996); and tenured faculty termination hearings, Patterson v. Bd. of Regents, 119 Wis.2d 570, 350 N.W.2d 612 (1984).1
{59} Applying Mathews points to the need for at least an intermediate standard of clear and convincing evidence. The weight or value of the private interest at stake is clear and significant. Personal liberty and freedom of movement have consistently been treated as surpassing values in the United States, and state initiated proceedings curtailing freedom have consistently called for heightened standards of proof. The criminal standard is the benchmark, but there are other types of actions involving curtailment of personal freedom which invoke an intermediate standard, i.e., civil commitments (Addington, 441 U.S. at 478, 99 S.Ct. 1831), deportation (Woodby v. INS, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966)), denaturalization (Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943)).
{60} Of course, by the time a juvenile defendant faces an amenability hearing, he or she has already forfeited the right to be free as such. The choice at this point is between the juvenile and adult systems. With the former, the juvenile likely faces a shorter time of incarceration and the potential for treatment and rehabilitation. With the latter sentence, the juvenile faces significantly longer incarceration in a harsher environment and the prospects of little or no treatment and rehabilitation. Thus, while the individual interest at the time of the amenability hearing is muted, it is still significant.
{61} The risk of error is unquestionably heightened by the absence of a specific standard of proof which the trial courts know to apply. This is not to disparage the work, quality, or good faith of trial judges. It is simply a reflection of the difficulty of the task and a common sense observation that the lack of a specific standard makes the task that much harder. Faith in the quality of the children’s court bench is simply not an entirely satisfactory substitute for appropriate due process standards.
{62} The interests of the State are complex. Any adverse monetary impact created by meeting a higher standard of proof can be expected to be de minimis and should be discounted. The State’s interest in the outcome of the amenability hearing are conflicting. On the one hand the State is dealing with a convicted juvenile. The societal policy preferring freeing the guilty to convicting the innocent which drives the criminal standard is no longer applicable in full force. The stronger societal interest is now self-protection and, frankly, punishment. On the other hand, the State has a continuing interest in attempting to salvage its youth from the sad consequences of their actions. Abandoning the goal of rehabilitation should not be made too easy through the mechanism of a too-low standard of proof. On balance, the Mathews factors call for a heightened standard of proof short of “beyond a reasonable doubt”; clear and convincing is the normal rubric for this level.
{64} Breed, 421 U.S. 519, 95 S.Ct. 1779 is not to the contrary. In Breed, the United States Supreme Court held that double jeopardy applied to juvenile transfer proceedings if a determination that the juvenile had violated the law was made prior to or at the transfer hearing. Since jeopardy attached at that point, the Court held that the juvenile could not then be retried in adult court. In exploring the procedural consequences of its ruling, the Court observed that complying with its decision should not in and of itself change the nature of transfer hearings. The court noted that it had “... 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.” 421 U.S. at 537, 95 S.Ct. 1779. That statement in Breed is a little more than a descriptive statement of the then state of the law. The Court up to that time had not addressed the standard of proof required in what were then termed transfer hearings, and it still has not to this date. The Court’s observation should not be read as a holding or acknowledgment by the court that no standard of proof is required. Rather, it is more appropriate to read it as assurance by the Court that no change of procedure — such as a showing of probable cause that the juvenile committed an offense — was required to comply with its double jeopardy ruling.
{65} In sum, adopting a clear and convincing standard of proof would provide a welcome guide to the trial bench as they make these difficult decisions. It would also make the process more consistent and predictable for the state and defendants alike.
APPRENDI ISSUES
{66} I am simply not as confident as the majority that the rule of Apprendi is inapplicable to our juvenile sentencing system.
{67} The differences between the juvenile and adult justice systems are not in my view so dramatic or fundamental that Apprendi of necessity cannot be applied. To be sure the juvenile justice system places comparatively more emphasis on rehabilitation than the adult system does. But, the juvenile system has increasingly concerned itself with accountability and protection of the public, narrowing the gap between the two approaches. The gap almost disappears in cases such as this where the offenses are serious and the amenability determination can result in tripling the sentence imposed on the defendant. And, despite the theoretical possibility of imposing a juvenile sentence after a finding of non-amenability, I cannot imagine a situation where a trial judge would find any reason to do so. Whatever the ideal purposes of the amenability hearings may be, the end result is punishment, potentially if not probably, at adult levels.
{68} Despite my reservations about the route taken by the majority, I must agree with the result. As the majority notes, juveniles have no constitutional right to be treated as a child within the juvenile system.2 Given that limitation, the legislature can set sentencing essentially as it pleases for juveniles. New Mexico’s unique system has given the trial judge two sentencing options. The amenability determination helps guide which option a judge may employ, but it does not increase the maximum sentence allowed by the legislature. In this way, our system most closely resembles in operation the capital sentencing procedures approved by the Supreme Court in Apprendi, 120 S.Ct. at 2389.
. The United States Supreme Court also used Mathews in two criminal cases. Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) and United States v. Raddatz, 447 U.S. 667, 100 S.Ct 2406, 65 L.Ed.2d 424 (1980). The Court recently retreated from use of Mathews in evaluating state procedural due process rules in the criminal area, recognizing a potential for undue federalization of the area beyond truly fundamental concerns. Medina v. California, 505 U.S. 437, 442-43, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992). The Court’s concerns do not cast doubt on a state court’s adaptation and use of the Mathews factors to determine "what procedures are due” in its own courts. See Britton v. Rogers, 631 F.2d 572, 580 (8th Cir.1980). I thus disagree with the Arizona Supreme Court’s decision in State v. Wagner, 194 Ariz. 310, 982 P.2d 270, 273 (1999) (en banc).
. There may be limits to this proposition, but they likely would not arise in situations such as we have here — a conviction of second degree murder committed by a then fourteen year old.