2. Prosecute Certain Serious, Violent, and Chronic Juvenile Offenders in Criminal Court
Juvenile violent crime is increasing at an alarming rate. Between 1983 and 1992, juvenile arrest rates for Violent Crime Index offenses increased nearly 60 percent, while adult rates increased by 47 percent. (See figure 5.)
In 1994, the Federal Interdepartmental Working Group on Violence concluded that we as a Nation have failed the juvenile justice system, which, in turn, is failing us.1 Without adequate resources to handle the growth of youth violence, the system has been unable to successfully fulfill its role in securing community safety. Our failure to support the juvenile justice system and to increase the system's capacity to succeed has created an immediate need to target certain serious, violent, and chronic juvenile offenders for prosecution in the criminal justice system. While many types of juvenile offenders can be treated in the juvenile justice system, the Coordinating Council recognizes that prosecution in criminal court is a necessary option in State and Federal juvenile justice systems for those juveniles whose offenses are particularly serious or violent or who are not amenable to rehabilitation in the juvenile justice system.
Figure 5: Violent crime arrest rates in 1983 and 1992
It is important to note, however, that the vast majority of juvenile cases can be appropriately handled in the juvenile justice system. For example, in 1992, 70 percent of juveniles referred to juvenile court were handled informally or not adjudicated, while most adjudicated delinquents received dispositions of formal probation. (See figure 6.)
The juvenile justice system is in the midst of a revolutionary period of change. A slow trend during the past decade to remove more serious, violent, and chronic juvenile offenders from the juvenile justice system and turn them over to criminal courts has escalated. A recent national survey of State corrections agencies showed a 39-percent increase in the number of juveniles transferred to, convicted in, or sentenced in criminal courts between 1988 and 1990 -- from 5,797 to 8,067.2 In 1992, 38 States reported 5,212 new court commitments of juveniles to State prisons.3
Figure 6: Delinquency dispositions in 1992
The behavior of a relatively small percentage of juvenile offenders has had a devastating impact on the public's sense of security, on victims, and on the families of victims. Research shows that, although these serious, violent, and chronic offenders comprise only 6 to 8 percent of the total juvenile offender population, they account for a disproportionately large number of offenses. These juveniles are involved in a wide range of offense types and are likely to commit both serious offenses and violent crimes. (See figure 7 for trends in juvenile arrests for specific violent crimes.) Because of its frequency and seriousness, the violent behavior of this group of offenders must be controlled to ensure public safety and security.4
Figure 7: Juvenile arrest rates for specific violent crimes
The juvenile arrest rate for aggravated assault remained relatively constant from the mid-1970's through the mid-1980's before increasing sharply through 1992.
Arrests per 100,000 juveniles ages 10-17
Unlike the Violent Crime Index trend, the juvenile arrest rate for forcible rape has increased gradually since the mid-1970's.
Arrests per 100,000 juveniles ages 10-17
The juvenile arrest rate for murder varied a little from 1973 to 1987, but increased 84 percent from 1987 to 1991, before it dropped in 1992 for the first time in 8 years.
Arrests per 100,000 juveniles ages 10-17
Data Source: FBI. 1994. Age-specific arrest rates and race-specific arrest rates for selected offenses 1965-1992. FBI. 1984-1993. Crime in the United States series.
Source: Snyder, H., and M. Sickmund. 1995 (August). Juvenile Offenders and Victims: A National Report. Washington, D.C.: Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice.
Transferring targeted juvenile offenders who commit the most serious and violent crimes to criminal court enables the juvenile justice system to focus its efforts and resources on the much larger group of at-risk youth and less serious and violent offenders who can benefit from a wide range of effective delinquency prevention and intervention strategies. However, in their efforts to ensure that certain juvenile offenders are transferred to the criminal justice system because of the seriousness of their offenses, the Federal Government and the States must be sure that only those youth who truly require this alternative under the laws of their particular jurisdiction are placed in the criminal justice system. We must also remain vigilant about the juvenile's right to counsel and about the potentially harmful impact of placing juveniles in adult jails, lockups, and correctional facilities, including problems associated with overcrowding, abuse, youth suicide, and the risk of transforming treatable juveniles into hardened criminals.5 Most of all, the continuing need for transfer of juveniles to criminal courts should strengthen our resolve to intervene at the earliest possible time to decrease the risk of future criminal behavior.
This section of the Action Plan describes the three primary mechanisms for transferring targeted juveniles to criminal court and summarizes current State legislation pertaining to juvenile transfer. It also addresses the trend toward increased transfer and describes innovative and alternative approaches to responding to serious, violent, and chronic offenders, and providing the treatment they need. This section includes proposed action steps assisting Federal and State jurisdictions in focusing on these offenders in order to secure the greater public safety. The Action Plan also encourages further study of the effectiveness and impact of transfers on both juvenile offenders and the justice system.
Current Status and Analysis of the Problem
A number of studies that have examined the offense characteristics of juveniles transferred to criminal court show that the presenting offense for most transferred juveniles is a property offense.6 This trend, however, appears to be changing.
Other research has focused on seriousness and chronicity. One study found that juveniles transferred by judicial waiver in Virginia tended to be older, more serious offenders, with prior records and commitment histories, except in metropolitan areas of the State.7 Another study found that juvenile robbery offenders transferred to criminal court in Philadelphia were more likely to have used guns in their offenses than those who were not transferred.8
The three legal mechanisms for transferring juvenile cases to criminal court are judicial waiver, prosecutorial discretion, and statutory exclusion. The use of all three mechanisms is being expanded as the problem of youth violence and the fear surrounding it increase.
Judicial waiver. Most States have established mechanisms to waive jurisdiction over a case to criminal court, generally after consideration of a motion made by the prosecutor.9 Juvenile court judges in all States except Nebraska, New York, and New Mexico have the authority to waive jurisdiction over a case to criminal court. An estimated 11,700 juvenile delinquency cases were referred to criminal court by judicial waiver in 1992, a 68-percent increase from 1987.10
Prosecutorial discretion ("concurrent jurisdiction"). Twelve States authorize prosecutors to file certain categories of juvenile cases directly in criminal court (direct file). This discretion is generally constrained by the age of the alleged offender and the type of offense. Although national statistics are unavailable on juvenile cases transferred to the criminal court as a result of prosecutorial discretion, one expert estimated that there were 2,000 prosecutorial direct files nationwide in 1978.11 By 1993, Florida prosecutors alone had filed criminal charges in 7,000 cases involving offenders under age 18.12
In addition to a national increase, there are indications that instances of prosecutorial discretion now outnumber judicial waivers in States allowing such transfers. In Florida, which has both judicial waiver and direct file provisions, two cases were filed directly in criminal court for every one case transferred by judicial waiver in 1981. By 1992, there were more than six direct filings for every case of judicial waiver.13
Statutory exclusion. Although not typically considered transfers, large numbers of youth age 17 and younger are tried as adults in the 11 States where the upper age of original juvenile court jurisdiction is less than 18 years. This type of statutory exclusion accounts for the largest number of youth under age 18 being tried in criminal court. Nationwide, an estimated 176,000 cases involving youth under age 18 were tried in criminal courts in 1991 because the offenders were considered adults under State law.14 Another statutory exclusion mechanism is to provide for statutory waiver or transfer of certain juveniles to criminal court for specific offenses -- generally older or repeat offenders for violent offenses. In such cases, the prosecutor must file a case in criminal court for the particular offense.
Since 1978, at least 41 States have enacted legislation to expand the use of transfer mechanisms. In 1994, at least 13 States enacted measures establishing or expanding statutory transfers of juveniles to criminal court by expanding offense categories or reducing age eligibility for certain offense types.
In any particular State, one, two, or all three transfer mechanisms may be in place.15 (See figure 8.) By 1993, 28 States had at least two of the three mechanisms for transferring juveniles to criminal court for prosecution. Three States had statutory provisions for all three methods, and at least 18 States were considering additional legislation in 1994.
While every State provides one or more mechanisms that allow juveniles charged with serious and violent criminal behavior to be tried in criminal court, the waiver and direct file criteria vary from State to State. Age 14 is the most common minimum age at which transfer can take place. The crimes that are most commonly authorized for transfer are aggravated felonies -- usually serious, violent, repeat offenses.16 Several States also have provisions for transferring "excluded" or "direct filed" cases from criminal court to juvenile court under certain circumstances. This is sometimes referred to as "reverse waiver" or "transfer back." A summary of some recent actions of State legislatures follows:
- Only one State, Wyoming, lowered the upper age -- from 18 to 17 -- of its juvenile court jurisdiction during the past 20 years, joining the other 39 States that had established age 17 as the upper age limit for original juvenile court jurisdiction. In 1995, however, two of these States, Wisconsin and New Hampshire, enacted legislation to lower the upper age of juvenile court jurisdiction to 16, effective January 1, 1996.
- North Carolina lowered the age of juveniles who can be tried as adults to 13; Oklahoma can now prosecute as adults juveniles age 13 and older accused of murder; and Tennessee removed the age limit for trying juveniles accused of certain serious and violent offenses as adults.17
- Five States have recently enacted or expanded concurrent jurisdiction legislation, bringing the total of States having such legislation to 12. In Michigan and Florida, prosecutors may now elect the court of original jurisdiction for certain classes of adolescent offenders.
- Eighteen States now have excluded-offense provisions (statutory waiver or transfer) for serious or violent crimes. For example, New York's juvenile offender law gives the criminal court original jurisdiction over juveniles ages 13 to 15 charged with murder, and those 14 or 15 years of age charged with Class A or B felonies, as defined by New York's Criminal Code. The State's 1978 juvenile offender law also provides for the "reverse waiver" of these juveniles from the criminal court to the juvenile court.
Depending on the decision point (judge, prosecutor, or legislator), various transfer criteria are to be carefully considered, such as the type of offense, age of offender, offense history, and receptiveness to rehabilitation. Statutory exclusion is clearly the most rigid method of determining how a juvenile offender will be processed, and most determinations are based on serious offenses and age limits. Several States also exclude juveniles charged with felonies from juvenile court if they have prior felony adjudications or convictions. Prosecutorial discretion, or direct file authority, is also typically limited by age and offense criteria.
The judicial waiver process typically focuses on age, offense, offense history, and the juvenile's amenability to treatment. A judicial waiver, therefore, should be predicated on an assessment of the youth's history of prior delinquency, counseling, attempts at rehabilitation, school record, and other relevant factors. The decision of the court must be in writing, exercised in open court, and predicated on an adversarial hearing with full due process, including an opportunity for presentation of evidence by the defense and the right to cross-examine witnesses.
Based on these varying requirements, each transfer mechanism is generally applied according to the age of the youth and the seriousness of the offense. For older offenders, when the offense is more serious or when the juvenile is a repeat offender, the tendency is to move away from judicial discretion and toward prosecutorial discretion and statutory exclusion.
Figure 8: State transfer provisions Many States have a combination of transfer provisions
Note: Analysis conducted 10/94; some provisions effective 1/1/95.
Source: Snyder, H., and M. Sickmund. 1995 (August) Juvenile Offenders and Victims: A National Report. Washington, D.C.: Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice.
Sentencing and Dispositional Outcomes and Effectiveness
Criminal court handling of serious, violent, and chronic juvenile offenders raises many philosophical, legal, program, policy, and research questions. Unfortunately, in recent years, an inadequate amount of research has been conducted on the impact of criminal court processing on reducing violent juvenile offending.
Some studies have shown relatively lenient treatment of juvenile offenders transferred to criminal court by judicial waiver, concurrent jurisdiction, and/or excluded offense.18 These studies are primarily based on data collected from the late 1970's and the 1980's. However, three more recent studies are available.
A Cook County, IL, study examined juveniles transferred to criminal court for drug and weapons violations under several Illinois excluded-offense statutes during 1991-92. The study found that most of the transferred juveniles were not viewed by criminal court judges as serious offenders. More than half received probation, supervision, or conditional discharge. Twelve percent, most of whom judges ruled eligible for boot camps, were sentenced to incarceration in Illinois prisons. Among the remainder, 18 percent were found not guilty.19
At least one study using more recent data shows a trend in transfers reflecting changes in the profile of offenders and case dispositions. A 1994 followup study by the Virginia Commission on Youth showed increased incarceration of transferred juveniles between 1988 and 1990 compared with those retained in the juvenile justice system. Among the more than 1,000 juveniles transferred between 1988 and 1990, 63 percent were sentenced to prison, 15 percent were sent to a local jail, and 22 percent received no incarceration. Those sentenced to prison served an average of 17 months, compared with less than 8 months served by those adjudicated in juvenile court and committed to juvenile institutions.20
A 1981 Ohio study of juveniles transferred to criminal court under judicial waiver found that most were involved in property offenses, and less than 40 percent were involved in violent offenses. In contrast, a study conducted a decade later found that almost two-thirds of the transfers were for violent offenses.21
The relative merits of juvenile versus criminal justice system handling of serious, violent, and chronic juvenile offenders are difficult to determine conclusively.22 Few comparative studies have been made, and those that exist are outdated. None has focused on innovative sentencing options, such as "blending" of juvenile and criminal justice system handling. A 1980 study demonstrated the importance of examining the seriousness of offense and age of the offender in these studies in order to obtain a clear picture of what is happening in the juvenile and criminal justice systems.23 This study confirmed that these are critical control factors in determining future case study outcomes.
Likewise, it is difficult to develop updated policy when the majority of the studies were generated in the 1980's, and it is impossible to determine from the existing research the impact of either criminal or juvenile system handling on subsequent offenses. While much activity is taking place in State legislatures to address mechanisms for the prosecution of juveniles in criminal court, very little evaluative research exists to guide such legislative change. The extent to which these transfer options are being used and the effectiveness of the various policy options are not yet known. The need for such information is substantial. Unless we fully understand how that body of law shapes the processing of cases as they move -- or fail to move -- through the juvenile and criminal justice systems, the efficacy of various provisions of State law will remain unknown. Without empirical assessments of the application and impact of various recent adjustments to juvenile law, those who favor or oppose such changes can do little more than speculate or make rough projections based on personal experience or limited research.24
The Climate That Drives Waivers
The trend toward treating more juveniles as criminal offenders is a reaction to a number of factors. First, it is a response to the increasing incidence and seriousness of juvenile violence and an overcrowded and overburdened juvenile justice system. Second, it is based on a concern that the juvenile justice system does not dispense sufficiently tough sanctions to provide accountability to victims and society. Third, because frequently there is no reliable system for the retention of records and identification of offenders, it is perceived that the juvenile justice system is not able to track and suppress a blossoming criminal career.
Lack of capacity. As discussed in the first section of the Action Plan, juvenile justice practitioners are confronted daily with moving juvenile offenders through the juvenile system. Overwhelmed by burdensome caseloads, they are often unable to assess the individual treatment needs of each juvenile, provide appropriate and sustained services, or ensure adequate supervision to effectively monitor the youth's behavior and compliance with a dispositional order. The lack of system capacity and graduated sanction programs are central deficiencies in the juvenile justice system that may tilt the frustrated decisionmaker (prosecutor, judge, or legislator) toward the decision to transfer increasing numbers of offenders. As noted in the Interdepartmental Working Group on Violence's Violence: Report to the President and Domestic Policy Council and in Objective 1 of this Action Plan, the already strained juvenile justice system lacks sufficient resources to accurately and reliably identify serious, violent, and chronic offenders and to intervene effectively with them.
Confidentiality. Currently, in keeping with long-held confidentiality rules, most juvenile courts do not provide victims with formal notification about offenders or the disposition of cases. Often, the only way the victim can receive such information is by attending the hearing, where statute permits. In addition, the media historically have had little access to information that they could use to demonstrate the lack of resources and programs facing individual offenders and the system. In more than 20 States, juvenile codes do not allow the names or pictures of juveniles involved in delinquency proceedings to be released to the media.25 However, recent court decisions have "opened the doors" of some delinquency proceedings, expanding public and media access.26 In addition, the National Council of Juvenile and Family Court Judges has declared that:Traditional notions of secrecy and confidentiality should be reexamined and relaxed to promote public confidence in the court's work. The public has a right to know how courts deal with children and families. The court should be opened to the media, interested professionals and students and, when appropriate, the public, in order to hold itself accountable, educate others, and encourage greater community participation.27
Confidentiality within the system of youth services also hinders the effectiveness of the juvenile justice system. Courts, schools, mental health and health facilities, law enforcement, and other social service agencies unintentionally impede effective rehabilitation of youth by restricting the exchange of appropriate and critical information about their individual histories. In the majority of cases, the resistance to sharing information is not based on laws or regulations but on institutional reluctance to violate privacy interests. Overly restrictive confidentiality rules and practices substantially weaken the juvenile justice system as a viable arena for trying serious and violent juvenile offender cases. Until we know the history and service needs of juveniles who enter the system, we can neither provide adequate services nor fully protect the public.
Lack of records or record availability. A State may manage its juvenile recordkeeping systems through a variety of methods. All are variations on the theme of "nondisclosure," a concept that means the records are not ordinarily available outside the court. The disclosure rules for each State vary, but the elements of the formula are generic. The parties before the juvenile court are entitled to the contents of the juvenile record file. Unfortunately, however, most States do not permit additional disclosure without specific authorization of the court or some other statute. Thus, while several States are now either considering or revising juvenile codes in response to growing public concern over juvenile crime and increasing demands by victims, it is likely that offender history information will remain unavailable to other agencies and individuals with an interest in a particular juvenile. Moreover, under varying conditions, every State permits requests to expunge or destroy juvenile records.
Many State and local jurisdictions do not maintain accurate or complete records of juvenile offenders or do not share these records with other jurisdictions and State repositories. This is primarily due to confidentiality concerns and the limited automation of juvenile records. As a result, it is sometimes impossible to determine whether a juvenile who gets into trouble is a first offender, a repeat offender, or a chronic offender. Ideally, when a juvenile first comes in contact with the juvenile justice system, appropriate records are established and maintained and all relevant agencies can share information to ensure positive identification. This record sharing also makes possible a proper treatment and rehabilitation plan designed to prevent the juvenile from coming into further contact with the juvenile justice system. Records of adjudications should be compiled and made available for subsequent proceedings in the juvenile and criminal justice systems, even after the juvenile reaches the age of full criminal responsibility, and the length of time records are held should depend on the seriousness of prior offenses.
Making juvenile records electronically accessible requires more than collecting and automating record data. Some States require electronic information systems, and others may need a change in their laws. A number of institutional components are involved, and assurances of appropriate confidentiality must be carefully considered and provided.
Problems with record maintenance may contribute to prosecutors seeking to transfer juvenile cases, particularly violent offenses. Otherwise, when the juvenile reaches age 18, or a statutorily provided time period, there may be no record of his or her delinquent history. For example, citizens, crime victims, school personnel, and law enforcement professionals express a legitimate concern about not having access to the history of juveniles adjudicated for sexual assault (even those who were treated) who are now free to apply for a job working with children or other vulnerable populations.
Length and termination of sentences. Another factor that drives the increased number of transferred juveniles is concern that placement in programs is often delayed because of waiting lists, and release is too often determined by a slot-driven system in which the critical factor is the need for a bed for the next offender. Furthermore, the juvenile justice system generally loses jurisdiction over a juvenile offender when the youth reaches a certain age, whether or not treatment is completed or the juvenile remains a threat to the public safety. This loss of jurisdiction may also contribute to the transfer of serious, violent, and chronic juvenile offenders to the criminal justice system in order to ensure that public safety is not threatened with the release of a violent offender who has reached the upper age of dispositional jurisdiction, which generally ranges from 18 to 21.
Issues of Juveniles in Federal Custody
Relatively few juveniles are in the Federal juvenile and criminal justice systems. The Federal Bureau of Prisons reports that, as of March 17, 1995, it had custody of 270 offenders who were 17 years or younger at the time they committed their offenses. Of this total, 130 were held as criminal offenders in adult institutions, and 140 were housed in contract juvenile facilities.
Federal prosecutions of juveniles, whether as delinquents or as criminal offenders, account for less than 1 percent of all Federal prosecutions. Apart from prosecutions of juveniles on Native American reservations and military bases, the Federal Government typically prosecutes only those juveniles who are members of large-scale narcotics-trafficking organizations or violent criminal organizations, such as gangs. In other instances, juveniles are prosecuted in Federal court for violent acts that have some Federal nexus, such as civil rights violations, carjacking, or bank robbery.
Even though the Major Crimes Act asserts Federal jurisdiction over certain offenses committed by Native Americans on their lands, tribes and tribal courts have expressed concern over the handling of serious crimes being committed by Native American youth in their communities. While tribes exercise concurrent jurisdiction over these crimes, they lack many of the resources needed to handle these cases properly. Specifically, they lack secure placement options, treatment resources, and sentencing capabilities. The Indian Civil Rights Act28 prevents tribal courts from sentencing any person convicted of a serious or violent offense to more than 1 year in jail and a fine of greater than $5,000.
Similarly, the prosecution of juvenile Federal offenders in cases involving Native American youth, and the impact on tribes and tribal courts when Federal prosecution is declined, need to be explored. Virtually no studies have been conducted on their impact on Federal and tribal criminal justice systems.
Effective and Promising Strategies and Programs
A number of States have recently passed laws authorizing or requiring information on alleged violent delinquents or adjudicated juvenile offenders to be shared with schools, child welfare agencies, or other social service providers. This information sharing provides all systems involved with a better understanding of the youth with whom they are working and the best way to work with that individual. It is also an important consideration for protecting the rights of victims of juvenile offenders. The Office of Juvenile Justice and Delinquency Prevention (OJJDP) is currently working with the Department of Education to develop a fact sheet on sharing school information with the juvenile justice system so that at-risk and delinquent youth can be identified and services provided prior to their involvement in serious and violent crime.
The Illinois juvenile court model for interagency information sharing, passed by the General Assembly in 1992, supports law enforcement, State attorneys, probation departments, juvenile courts, social service providers, and schools in the early identification and treatment of habitual juvenile offenders. This 1992 amendment to the Illinois Juvenile Court Act of 1987 authorizes an interagency committee to gather and disseminate comprehensive data to agencies in the juvenile justice system to produce more informed system decisions. This is being accomplished, in part, through the establishment of a statewide Serious Habitual Offender Comprehensive Action Program (SHOCAP). Developed by OJJDP, the SHOCAP multi-disciplinary interagency case management and information-sharing system establishes an interdisciplinary committee. The committee develops criteria to identify juveniles who are serious habitual offenders and adopts a written interagency information-sharing agreement.
The Florida model for interagency information sharing authorizes the juvenile court to maintain records of all cases brought before it. The model also provides that the court shall preserve records pertaining to juveniles charged with committing delinquent acts or violations of the law until they reach age 24, or age 26 in the case of serious or habitual delinquents. Florida has recently developed a statewide SHOCAP in 15 sites and will be adding another 10 sites in 1996.
Youthful-Offender Laws, Blended Sentencing, and Intermediate Facilities
Some States are improving the response of their juvenile justice systems to serious, violent, and chronic juvenile offenders by developing intermediate (third system) facilities or blended sentencing models. Other States have created separate youthful-offender institutions for juveniles adjudicated delinquent for serious or violent crimes or convicted and sentenced criminally under youthful-offender statutes. These typically permit the juvenile court to treat older, more aggressive juvenile offenders as youthful offenders, rather than as delinquents, by placing them in specialized youthful-offender facilities. Conversely, some statutes permit criminal courts to treat juvenile criminal offenders, and sometimes younger adults who have committed less serious crimes, as youthful offenders. California, Montana, and New York have long had such statutes.
Colorado's Youthful Offender System, created in 1993, is designed to break down gang affiliation and youth violence by concentrating on treatment, discipline, and intensive reintegration services through a low staff-to-offender ratio. In Wisconsin's program, the State mandates that some youthful offenders stay in the program for 5 years. If they have committed felonies that would have been punishable by life imprisonment, juveniles must stay in the program until they are 25 years old.29
In some jurisdictions, either through legislation or agency procedures, judges and correctional officials have available a range of both juvenile and adult correctional sanctions for serious, violent, and chronic juvenile offenders who have been adjudicated delinquent and/or convicted criminally. This blending of sanctions may be strictly age based (for example, on reaching a certain age, the delinquent offender is transferred to adult prison under a criminal conviction).
In 1995, Minnesota enacted a blended sentencing law that creates a new category called "extended sentence jurisdiction juveniles" for serious and repeat offenders over age 14. When found guilty of a crime, these juveniles receive both a juvenile disposition and a suspended criminal sentence. If they fail to conform to the requirements of the juvenile disposition, juveniles can receive the criminal sentence that, in most cases, would result in confinement in an adult jail or prison. The law extends the continuing jurisdiction of the juvenile justice system to age 21.
Florida has led the way in an unusual blending of traditional features of the juvenile and criminal justice systems through a three-tiered approach that gives prosecutors expanded discretionary power in making jurisdictional decisions as the age of defendants and the severity of offenses increase.30 In criminal court, the judge has a variety of sentencing options, including sentencing the offender as an adult or as a juvenile. The criminal court judge retains jurisdiction over an individual sentenced as a juvenile to monitor the sentence and, if there is a violation of the court order, to resentence the offender as an adult. Thus, Florida's law grants its criminal court judges broader dispositional power than that of juvenile court judges, creating a "last chance" provision.
Related statutory provisions in some States target serious, violent, or chronic juvenile offenders by creating an official record that will follow the offender into the criminal system and/or by authorizing enhanced commitments by the juvenile court. Colorado, Massachusetts, Pennsylvania, and Texas have enacted enhanced commitments.
The Texas law, for example, gives the juvenile court authority to provide determinate juvenile sentences of up to 40 years in prison for 12 violent felony offenses, with the sentence to begin with treatment in the juvenile correctional system to age 18, at which time transfer to an adult facility following a court review is authorized. Such transfer is automatic at age 21. Juveniles subject to this Texas law have a right to all the due process and procedural rights of accused criminal offenders, including jury trial and bail.
The distinction in appropriate dispositional alternatives between younger adult and older juvenile offenders is not always clear. Justice system practitioners have strong and differing opinions about what should be done to address these individuals. Consequently, blended sentencing and extended jurisdiction statutory schemes are gaining favor in an increasing number of States. In order to address public safety needs, States should continue to experiment with the development, implementation, and evaluation of these types of dispositional options. At the same time, however, we must also invest in the juvenile justice system so that it can meet the treatment needs of juvenile offenders.
The Action Plan suggests providing increased flexibility for the transfer of appropriate juveniles to criminal court until the juvenile justice system has the capacity to provide adequate program services to serious, violent, and chronic juvenile offenders and to ensure public safety. Specifically, it proposes a two-tiered system of extended jurisdiction in the juvenile court for serious, violent, and chronic offenders and consideration of innovative blended sentencing options for juvenile offenders under criminal court jurisdiction.
The two-tiered system would provide for the transfer of serious, violent, and chronic juvenile offenders contingent upon age, presenting offense, and offense history, allowing greater prosecutorial discretion for the older, more serious offender. State laws should consider appropriate discretionary powers for prosecutors to proceed to criminal court as the ages of juvenile offenders and the severity of the offense increase, thereby allowing for individualized case review and decisionmaking. Extended jurisdiction of the juvenile court can be predicated upon a judge's determination that a juvenile is a serious, violent, or chronic offender based upon the current offense and the juvenile's prior history in the justice system. The court could be authorized to use this extended jurisdiction to keep an adjudicated delinquent in the system beyond age 21 if there were a reasonable expectation of successful treatment.
The use of innovative blended sentencing options can function as a supplement to the provision of extended jurisdiction by authorizing the criminal or juvenile court judge to utilize or, when appropriate, to combine juvenile and adult responses into a continuum of sanctions appropriate to the offense history and age of the juvenile. The Action Plan advocates a clear judicial role in either the decision to proceed against a juvenile as a criminal offender or at the dispositional stage through discretion in sentencing options, as outlined above. However, while not advocating for statutory exclusion or lowering the age for criminal court jurisdiction, the Action Plan recognizes that, in some instances, State law may use more than one transfer mechanism and expressly provide for the imposition only of criminal sanctions for specific classes of offenses at specific ages.
If the graduated sanctions model recommended in the Action Plan is fully implemented in a jurisdiction with adequate programming and resources, then the numbers of juveniles being transferred into the criminal court or classified for extended jurisdiction should decrease. In the interim, however, a more flexible mechanism is needed that ensures public safety and provides appropriate sanctions for serious, violent, and chronic juvenile offenders. With flexibility in court sentencing, the criminal court judge can access juvenile court programming as a "last chance" option for these offenders, while also enhancing the supervision of the court and heightening the motivation of the offender, who is accountable to the criminal court and faces a potential prison sentence upon violation of sentencing conditions.
Federal Prosecution of Juveniles
At the Federal level, the Action Plan suggests examining the advisability of amending the Federal Juvenile Delinquency Code to remove procedural barriers to the transfer of juveniles under Federal jurisdiction for criminal prosecution, including adding prosecutorial transfer authority (direct file) for certain serious and violent offenses.
Federal Action Steps
Promote Innovative Options for the Appropriate Maintenance and Sharing of Juvenile Records
OJJDP and the Department of Education (ED) will continue to review Federal Educational Records Privacy Act (FERPA) regulations to clarify and enhance the ability of schools to share information with other agencies responsible for handling juvenile offenders.
OJJDP and ED will also develop technical assistance mechanisms to build the capacity of law enforcement and educational institutions to share juvenile records.
Improve Targeting, Apprehension, Prosecution, Treatment, and Correctional Facilities and Programs for Serious, Violent, and Chronic Juvenile Offenders
The Department of Justice (DOJ) will provide funding through its Correctional Facilities/Violent Offender Incarceration Grants for construction of, or planning for, prison facilities for criminal offenders and for boot camp programs for adult or juvenile offenders (to make available secure space in prisons or juvenile correctional facilities for violent offenders).
OJJDP will increase its focus on programs to identify and target these offenders, such as SHOCAP; arrest and prosecute them, as appropriate; and provide treatment programs for serious, violent, and chronic juvenile offenders within the juvenile justice system. These programs combine accountability and sanctions with increasingly intensive community-based intervention, treatment, and rehabilitation services correlated with the seriousness or nature of particular offenses.
Assist States and Local Governments To Identify Juvenile Offenders
DOJ supports improved juvenile records that are accurate and accessible, where appropriate, in both the juvenile and criminal justice systems.
The Bureau of Justice Statistics (BJS) and OJJDP have produced publications to assist State recordkeepers in understanding the technical, legal, and policy issues relating to juvenile records. Statistical and legislative solutions from States were compiled.
Based on this information, BJS will continue to address the issue within the context of its ongoing program to assist States in upgrading criminal records. Specifically, BJS will:
- Sponsor a national conference to address issues associated with the use of, and access to, juvenile records in the criminal justice system.
- Sponsor a study to analyze legal and policy issues associated with the collection, use, and exchange of juvenile delinquency records, including the relationship between juvenile and criminal records.
- Convene a national conference to discuss issues involved in linking juvenile and adult records.
OJJDP's Systems and Statistics Development (SSD) Program -- which collects, analyzes, and disseminates national statistics on juvenile victims and offenders and documents the system's response -- will continue to raise the level of attention to juvenile record issues. SSD's actions are helping States recognize the entire range of issues associated with juvenile records: fingerprinting and other forms of biometric identification of juveniles, classification of juvenile offenses as compared with adult crimes, automation of juvenile records, expunging or sealing of records, and types of records to be made available in national criminal history recordkeeping systems.
The National Institute of Justice (NIJ) will sponsor research to examine the use of juvenile record information in the adjudication and sentencing of criminal offenders. The study will consist of two phases. Phase one will be a national assessment of legislation and practice to determine the extent to which States are authorized to consider juvenile record information in criminal prosecutions. Phase two will examine how juvenile record information is used in Sedgwick County (Wichita), KS, and in Montgomery County, MD.
OJJDP and ED will develop a fact sheet on sharing school information with the juvenile justice system.
Examine Transfer Statistics and the Impact of Innovative Sentencing Options
In order to assist in developing this information, OJJDP will carry out the following studies:
- A statistical assessment of national transfer trends in the context of State legislative requirements.
- A comparison between juvenile and criminal justice system management of juvenile offenders.
These studies will control for presenting offense, offense history, and age of offender in order to provide accurate data.
Develop and Support Innovative Options for the Handling of Serious, Violent, and Chronic Juvenile Offenders
OJJDP will survey innovative system practices in managing serious, violent, and chronic juvenile offenders in both the juvenile and criminal justice systems.
Review Procedural Barriers to Prosecuting Violent Federal Juvenile Offenders as Criminal Offenders
DOJ will facilitate prosecuting certain serious, violent, and chronic juvenile offenders as criminals in Federal court by proposing that Congress amend the Federal juvenile delinquency statute to accomplish the following:
- Remove unnecessary procedural barriers for prosecuting and transferring violent juvenile felony offenders as criminals in the Federal system.
- Authorize juveniles prosecuted as criminal felons to be detained and incarcerated separately in adult facilities through a reasonable process and on a case-by-case basis.
- Permit expanded use of fingerprinting and recordkeeping and expanded access to those prints and records for juveniles adjudicated delinquent.
- Address the Federal system's lack of victim rights, including notification; restitution; return of property; victim impact statements; protection from intimidation, harassment, and harm; and information and referral services for those juveniles under Federal delinquency jurisdiction.
- Permit use of supervised release for juveniles adjudicated delinquent after their release from terms of confinement.
Provide Training and Technical Assistance to Federal, State, and Local Prosecutors and Judges Handling Juvenile Cases
The DOJ Criminal Division, in conjunction with the Executive Office for U.S. Attorneys, will disseminate to all U.S. Attorneys' Offices a manual outlining the issues in federally prosecuting juvenile offenders. The manual will cite relevant case law and include form indictments and pleadings to aid Assistant U.S. Attorneys. In addition, a publication examining these issues, entitled Federal Prosecution of Gangs and Juveniles, is available from DOJ's Office of Legal Education.31
Through the Anti-Violent Crime Initiative, the Criminal Division will encourage Federal prosecutors to continue working with their State and local counterparts to develop strategies to reduce youth violence. For example, all U.S. Attorneys have met with their violent-crime workgroups to implement the Youth Handgun Safety Act in their districts. As part of that effort, they have focused on identifying the sources of firearms possessed by juveniles and getting guns out of schools as part of a larger strategy to address violent crime.
OJJDP will continue to support a prosecutor training center developed by the National District Attorneys Association. This project provides workshops on juvenile justice-related executive policy, leadership, and management for chief prosecutors and juvenile unit chiefs and provides background information to prosecutors on juvenile justice issues and programs.
Suggestions for State and Local Action
- Review mechanisms for prosecuting, adjudicating, and sentencing juveniles in the criminal justice system.
- Assess the impact of proposed transfer mechanisms before they are enacted into law.
- Establish and maintain a well-structured system of graduated sanctions for juvenile offenders.
- Establish automated record-keeping systems in all local juvenile courts. Collect and centralize juvenile records at the State level. Forward records of adjudication for serious delinquency to the Federal Bureau of Investigation to facilitate information sharing and accurate criminal history records.
- Assist schools and juvenile justice system practitioners to obtain court orders allowing information sharing on juveniles in the justice system, where such orders are necessary to authorize information sharing.
- Adopt policies and standards for prosecuting serious, violent, and chronic juvenile offenders in criminal court.
- Develop innovative and/or alternative sanctions such as community-based corrections options.
- Fingerprint and photograph youth charged with delinquent acts in the juvenile justice system.
- Request technical assistance and training through OJJDP to institute needed system changes.
- Work with the media (print and broadcast) to promote greater public understanding of the scope and complexity of the transfer issue.
1. Interdepartmental Working Group on Violence. 1994. Violence: Report to the President and Domestic Policy Council. Washington, D.C.
2. Hunziker, D. 1995 (May). Juvenile crime, grown-up time. State Legislatures 21(5):14-19.
3. Perkins, C. 1994. National Corrections Reporting Program -- 1992. Washington, D.C.: Bureau of Justice Statistics, U.S. Department of Justice.
4. Wolfgang, M.E. 1972. Delinquency in a Birth Cohort. Chicago, Ill.: University of Chicago Press.
Wolfgang, M.E., R.M. Figlio, and T.P. Thornberry. 1987. From Boy to Man -- From Delinquency to Crime. Chicago, Ill.: University of Chicago Press.
5. Parent, D.G., V. Lieter, S. Kennedy, et al. 1994 (August). Conditions of Confinement: Juvenile Detention and Corrections Facilities. Washington, D.C.: Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice.
6. Bishop, D.M., C.E. Frazier, and J.C. Henretta. 1989 (April). Prosecutorial waiver: Case study of a questionable reform. Crime and Delinquency 35(2):179-201.
Bortner, M.A. 1986 (January). Traditional rhetoric, organizational realities: Remand of juveniles to adult court. Crime and Delinquency 35:53-73.
Champion, D.J. 1989 (October). Teenage felons and waiver hearings: Some recent trends, 1980-1988. Crime and Delinquency 35(4):577-585.
Fagan, J., and E.P. Deschenes. 1990 (Summer). Determinants of judicial waiver decisions for violent juvenile offenders. Journal of Criminal Law and Criminology 81(2):314-347.
Gillespie, L.K., and M.D. Norman. 1984. Does certification mean prison? Some preliminary findings from Utah. Juvenile and Family Court Journal 35(3):23-34.
Greenwood, P.W. 1986. Differences in criminal behavior and court responses among juvenile and young adult defendants. In M. Tony and N. Morris, eds. Crime and Justice: An Annual Review of Research. Chicago, Ill.: University of Chicago Press.
Hamparian, D.M., et al. 1985. The Young Criminal Years of the Violent Few. Washington, D.C.: Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice.
Heuser, J.P. 1985. Juveniles Arrested for Serious Felony Crimes in Oregon and "Remanded" to Adult Criminal Courts: A Statistical Study. Salem, Ore.: Crime Analysis Center, Oregon Department of Justice.
Houghtalin, M., and G.L. Mays. 1991. Criminal dispositions of New Mexico juveniles transferred to adult court. Crime and Delinquency 37:393-407.
Nimick, E.H., L. Szymanski, and H. Snyder. 1986. Juvenile Court Waiver: A Study of Juvenile Court Cases Transferred to Criminal Court. Washington, D.C.: Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice.
Thomas, C.W., and S. Bilchik. 1985. Prosecuting juveniles in criminal courts: A legal and empirical analysis. Journal of Criminal Law and Criminology 76(2):439-479.
7. Poulon, T.M., and S. Orchowsky. 1994 (January). Serious juvenile offenders: Predicting the probability of transfer to criminal court. Crime and Delinquency 40(1):3-17.
8. Eigen, J.P. 1981. The determinants and impact of jurisdictional transfer in Philadelphia. In J.C. Hall et al. Major Issues in Juvenile Justice Information and Training: Readings in Public Policy. Columbus, Ohio: Academy for Contemporary Problems.
9. Hunziker, 1995.
10. Snyder, H., and M. Sickmund. 1995 (August). Juvenile Offenders and Victims: A National Report. Washington, D.C.: Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice.
11. Hamparian et al., 1985.
12. Snyder and Sickmund, 1995.
14. Sickmund, M. 1994 (October). How Juveniles Get to Criminal Court. OJJDP Update on Statistics. Juvenile Justice Bulletin. Washington, D.C.: Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice.
15. Snyder and Sickmund, 1995.
16. Howell, J.C., J.D. Hawkins, and J. Wilson, eds. 1995. Sourcebook on Serious, Violent, and Chronic Juvenile Offenders. Thousand Oaks, Calif.: Sage Publishing.
17. Hunziker, 1995.
18. Clarke, S.H. 1994 (Summer). Increasing imprisonment to prevent violent crime: Is it working? Popular Government 16-24.
Hamparian et al., 1985.
Snyder, H., and J. Hutzler. 1981 (September). The Serious Juvenile Offender: The Scope of the Problem and the Response of Juvenile Courts. Washington, D.C.: Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice.
19. Howell et al., eds., 1995.
20. Hunziker, 1995.
21. Howell et al., eds., 1995.
22. Howell, J.C., ed. 1995 (May). Guide for Implementing the Comprehensive Strategy for Serious, Violent, and Chronic Juvenile Offenders. Washington, D.C.: Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice.
23. Greenwood, P.W., J. Petersilia, and F.E. Zimring. 1980 (October). Age, Crime, and Sanctions: The Transition from Juvenile to Adult Court. Santa Monica, Calif.: The RAND Corporation.
24. Thomas and Bilchik, 1985.
25. Snyder and Sickmund, 1995.
26. Martin, G.A., Jr. 1995 (Summer). Open the doors: A judicial call to end confidentiality in delinquency proceedings. New England Journal on Criminal and Civil Confinement 21:393.
27. Children and Families First: A Mandate for America's Courts, cited in Martin, G.A., Jr. 1995 (Summer).
28. U.S.C. 25 1302(7).
29. Hunziker, 1995.
30. Thomas and Bilchik, 1985.
31. Stevens, J.B. 1994. Federal prosecution of gangs and juveniles. Criminal Practice Manual. Washington, D.C.: Office of Legal Education, U.S. Department of Justice.
Contents | Foreword | Acknowledgments | Introduction | Summary
Figures | Objectives | Conclusion | Appendixes