On Appeal from the District Court of the Virgin Islands Division of St. Thomas and St. John Appellate Division. (D.C. Criminal No. 92-00022).
Before: Greenberg, Scirica and Garth, Circuit Judges.
In this matter, a juvenile found guilty of negligent homicide following a traffic accident appeals the Territorial Court's imposition of a $500 fine on the grounds that it was not authorized by statute, and if it was, then its imposition violated the constitutional prohibition against ex post facto laws. Ruling the fine was a "foreseeable" construction of the Virgin Islands juvenile statute, 5 V.I.C. §§ 2501-54 (1983), the Appellate Division affirmed the Territorial Court's judgment. We will reverse.
While driving his car, D.W. struck and killed a jogger running on the road. Although D.W. claims he did not see the victim until the moment of impact, the incident did not occur in an area with obstructed vision.
The government brought juvenile proceedings against D.W., charging him with negligent homicide (20 V.I.C. § 504) and negligent driving (20 V.I.C. § 503). At the adjudicatory hearing, D.W. admitted guilt on the negligent homicide and the government dropped the negligent driving charge.*fn1 The Judge held a Disposition hearing, at which he announced his intent to impose a fine, among other sanctions, and requested briefs on this issue. The government declined to file a brief but stated it was aware of no other juvenile case in which a fine had been imposed. At the subsequent Disposition hearing, the Judge placed D.W. on probation in the custody of his mother until his 19th birthday, ordered him to perform 500 hours of community service during his probation, and fined him $500.
D.W. appealed the fine to the Appellate Division, contending that the Virgin Islands juvenile statute does not authorize fines and that because no prior case had imposed a fine, its imposition would violate ex post facto protections. The Appellate Division rejected this contention, and D.W. appealed.*fn2
It is widely accepted that fines are creatures of statute. Thus, "the State, by any statute fixing a penalty of a fine, has declared its penological interest . . . satisfied by a monetary payment." Williams v. Illinois, 399 U.S. 235, 264, 26 L. Ed. 2d 586, 90 S. Ct. 2018 (1970) (Harlan, J., Concurring in result). Not only must a fine be authorized by statute, but the amount of the fine must be statutorily capped. "The discretion of the Judge in choosing among sentencing alternatives will be controlled by statute." Wayne R. LaFave & Jerold H. Israel, Criminal Procedure 29 (1984).
To determine whether the fine imposed on D.W. was authorized by the Virgin Islands juvenile statute, we look to the language and structure of that statute. Nowhere does the statute specifically authorize the imposition of a fine. Ruling the statute authorizes a fine, the Appellate Division relied on language in the statute's initial section, entitled "A Children's Policy For The Territory." 5 V.I.C. § 2501. Section 2501(c) provides:
The policy for children who commit delinquent acts is a balance between treatment and sanctions. Emphasis is placed upon public safety and deterrence. Children should become aware through the imposition of sanctions that delinquent behavior will not be excused. Sanctions will be dispensed in a manner that is "appropriate to the seriousness of the offense."*fn3
The Appellate Division found a fine authorized and foreseeable because this section is "broadly worded," and "puts juveniles on notice that sanctions designed to demonstrate that delinquent behavior will not be tolerated are the possible penalty for their acts." The Appellate Division also noted that "although the Family Court had never before imposed a fine on a juvenile, fines are a commonplace and ordinary sanction."
Section 2501 does not provide authority for imposition of a fine. Its mere reference to sanctions "appropriate to the seriousness of the offense" only authorizes the Judge to choose among sanctions set forth in the statute (5 V.I.C. §§ 2521 & 2524), which do not include fines. Although we need not decide whether Section 2501 is void for vagueness, see United States v. Batchelder, 442 U.S. 114, 123, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (1979) (applying vagueness doctrine to sentencing provision), it clearly fails to give notice that a fine is a possible punishment. Furthermore, the government's argument that the fine qualifies as a "sanction designed to demonstrate that delinquent behavior will not be tolerated" could be said of any sanction, whether or not authorized by statute.
In any event, § 2501 is not the critical provision in determining whether the fine was authorized by statute. That question turns on whether a fine is included among the particular sanctions set forth in the statute. Authorization for specific sanctions is contained in 5 V.I.C. §§ 2521 and 2524. Section 2521(b), entitled "Disposition of delinquent child or person in need of supervision," provides that "a court may make any of the following Dispositions: . . . permit the child to remain with his parents, . . . place the child on probation . . . with such conditions as described in § 2524, . . . [or] order such care and treatment as the court may deem best." Section 2524 authorizes sixteen types of conditions of probation, including community service.
Notably absent from both §§ 2521 and 2524 is any authorization of, or even reference to, a monetary fine as a permissible sanction. This is in sharp contrast to the other sanctions imposed by the trial Judge upon D.W. -- 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). Because the statute does not include a fine among the Disposition alternatives, we hold that the statute did not authorize the Territorial Court to impose a fine on D.W.*fn4
A fine is not, as the Dissent suggests, an "other lawful condition" of probation with which the court can order D.W. to comply under § 2524(b)(16). The text of § 2524 forecloses this interpretation. Section 2524(b)(16) authorizes the court to require the juvenile to "comply with such other lawful conditions as may be ordered by the court, including refraining from the use of controlled substances and alcohol." The illustrations in the latter clause are different in kind from a fine. Like other specified conditions of probation in § 2524, for example, "work or pursue a course of study," § 2524(b)(3), or "undergo medical or psychiatric treatment," § 2524(b)(4), the illustrations in § 2524(b)(16) are direct and ongoing regulations on conduct. Accordingly, we believe the phrase "other lawful condition" refers to analogous conduct regulations, such as a curfew. A fine is neither an ongoing sanction nor a direct regulation on conduct linked to probation.*fn5
To read the words "other lawful condition" to authorize a fine -- as neither the government nor the Appellate Division, nor any other court in the Virgin Islands has done*fn6 -- would violate "two policies that have long been part of our tradition, . . . fair warning . . . in language that the common world will understand, of what the law intends to do if a certain line is passed, . . . [and the principle that] because criminal punishment usually represents the moral condemnation of the community, legislatures and ...