326
Stevens, J., dissenting
charged with an offense "to his parents, guardian, custodian, or other responsible party (including, but not limited to, the director of a shelter-care facility) upon their promise to bring such juvenile before the appropriate court when requested by such court unless the magistrate determines, after hearing, at which the juvenile is represented by counsel, that the detention of such juvenile is required to secure his timely appearance before the appropriate court or to insure his safety or that of others." 18 U. S. C. § 5034 (emphasis added).8 There is no evidence in the record of this litigation that any release by the INS, or by a federal magistrate, to an "other responsible party" ever resulted in any harm to a juvenile. Thus, nationwide experience prior to 1984 discloses no evidence of any demonstrated need for a change in INS policy.
Nevertheless, in 1984 the Western Region of the INS adopted a separate policy for minors in deportation proceedings, but not for exclusion proceedings. The policy provided that minors would be released only to a parent or lawful guardian, except " 'in unusual and extraordinary cases, at the
Nev. Rev. Stat. § 62.170 (1991) (release to "parent or other responsible adult"); N. H. Rev. Stat. Ann. § 169-B:14 (1990) (release to relative, friend, foster home, group home, crisis home, or shelter-care facility); S. C. Code Ann. § 20-7-600 (Supp. 1992) (release to "parent, a responsible adult, a responsible agent of a court-approved foster home, group home, facility, or program"); S. D. Codified Laws § 26-7A-89 (1992) (release to probation officer or any other suitable person appointed by the court); Tex. Fam. Code Ann. § 52.02 (Supp. 1993) (release to "parent, guardian, custodian of the child, or other responsible adult"); Utah Code Ann. § 78-3a-29(3)(a) (1992) (release to "parent or other responsible adult").
8 As enacted in 1938, the Federal Juvenile Delinquency Act authorized a committing magistrate to release a juvenile "upon his own recognizance or that of some responsible person. . . . Such juvenile shall not be committed to a jail or other similar institution, unless in the opinion of the marshal it appears that such commitment is necessary to secure the custody of the juvenile or to insure his safety or that of others." § 5, 52 Stat. 765. The "responsible person" alternative has been a part of our law ever since.
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