Jurisdictional Authority

Trend: States continue to modify age/offense transfer criteria, allowing more serious and violent juvenile offenders to betried as criminals; some are beginning to study the impact of new transfer laws.

All States allow juveniles under certain conditions to be tried as if they were adults in criminal court by way of one or more transfer mechanisms (e.g., judicial waiver, prosecutorial direct filing, or legislative exclusion). The previous State Responses report documented that, from 1992 through 1995, all but 10 States modified their statutes, making it easier to prosecute juveniles in criminal court. Changes occurred because legislatures added significantly to the list of offenses eligible for criminal prosecution and/or lowered the age at which certain juveniles could be tried in criminal court. The underlying intent of such consistent change across the Nation was to ease and support the State's decision to punish and hold accountable those juveniles who had, by instant offense or history, passed a threshold of tolerated "juvenile" criminal behavior. Proponents of criminal court processing of juvenile offenders argue that the juvenile justice system is not punitive enough to protect society or hold juveniles accountable. Whether by intent or default, broader direct file and exclusion provisions also changed decisionmaking roles. Juvenile court judges have significantly less authority to make decisions regarding the venue for cases involving violent or other serious crime than they had prior to the 1990's. Either directly through prosecutorial direct filing or indirectly, by virtue of the charging process in exclusion cases, prosecutors clearly emerged with an expanded role in justice system responses to violent juvenile crime. In 1996-97, 25 States made changes to their transfer statutes.

This Bulletin expands or relabels the classifications used in the previous report to describe the variety of transfer mechanisms available for trying juveniles in criminal court. With increased knowledge about transfer statutes, the authors wanted the classifications to portray the essence of each provision and identify who has the authority for making the transfer decision. This was particularly important with respect to judicial waiver provisions that differ in the degree of decisionmaking flexibility they allow juvenile courts. Some make the waiver decision entirely discretionary; others set up a presumption in favor of waiver; and still others specify circumstances under which waiver is mandatory. Under all waiver provisions, a case against a juvenile must at least originate in juvenile court. As a result, the "judicial waiver" classification has been relabeled "discretionary waiver" and a "mandatory waiver" category has been added to refer to a situation in which the juvenile court judge makes a decision in a case that must be waived. Previously, this provision was included in the "exclusion" classification because of its "shall" waive requirement (see table 1 for definitions of transfer classifications).

table 1

Judicial Waiver

Discretionary waiver. At the end of the 1997 legislative session, all but five States (Connecticut, Massachusetts, Nebraska, New Mexico, and New York) provided for discretionary waiver of certain juveniles to criminal court (see table 2). During 1996-97, four States lowered their discretionary waiver age limit, seven States added crimes, and four States added or modified prior record provisions (see table 3). The significant news is that Massachusetts removed its waiver provision in 1996 in favor of new direct file and exclusion provisions.

table 2

table 3

Mandatory waiver. At the end of 1997, 14 States had a mandatory waiver statute in which the juvenile court judge, after finding probable cause, must waive jurisdiction. None of these States modified their mandatory waiver provisions between 1996 and 1997. (Note: Seven States with mandatory waiver provisions -- Connecticut, Kentucky, North Carolina, North Dakota, Ohio, Rhode Island, and West Virginia -- were previously classified under statutory exclusion.)

Presumptive waiver. As of the end of the 1997 legislative session, 14 States and the District of Columbia (hereafter included with States in this Bulletin) had presumptive waiver provisions that designate a category of offenders in which waiver to criminal court is rebuttably presumed to be appropriate. In other words, the burden of proof shifts from the State to the juvenile to show amenability to juvenile justice system processing. In 1996-97, two States (Kansas and Utah) enacted new laws establishing presumptive waiver for certain cases.

Direct File

Direct file provisions (also known as concurrent jurisdiction) give the prosecutor the discretion to file charges in either the juvenile or criminal court. Atthe end of 1997, 15 States had direct file statutes. In 1996-97, five States modified existing provisions and three States (Arkansas, Massachusetts, and Montana) enacted new laws permitting direct filing.

Georgia's Senate Bill 440 Project Tracks Outcomes

The Georgia Indigent Defense Council is working with the Governor's Children and Youth Coordinating Council and the Georgia Department of Juvenile Justice to track court process outcomes for juveniles arrested as adults under the State's recent exclusion law. The project is named after Senate bill 440, which became effective May 1, 1994.

The most recent reports of the project provide offense detail and race, age, and gender information for 2,400 juveniles arrested for ÒexcludedÓ crimes. The reports document that the new law has primarily impacted African-American youth that make up about 80% of the arrests but only 34% of the juvenile population at risk of exclusion (13- to 17-year-olds). Other findings indicate that most offenders were male (97%) and about half (44%) were 16 years old at the time of arrest. The most common offense for minorities was armed robbery, whereas for whites it was aggravated child molestation. Work is pending on a report that will analyze court disposition information.

Source: Georgia Indigent Defense Council, Juvenile Advocacy Division. Winter 1998 and Spring 1998. Juveniles Arrested as Adults Under SB440. Atlanta, GA: Georgia Indigent Defense Council.

Statutory Exclusion

Statutory exclusion provisions (also referred to as automatic or mandatory transfer) automatically exclude certain juvenile offenders from the juvenile court's original jurisdiction. As they do with all transfer provisions, legislatures typically specify age and offense criteria. However, one application of exclusion -- lowering the upper age of original juvenile court jurisdiction -- excludes the largest number of juveniles from juvenile jurisdiction. Some State legislatures have excluded all 17-year-olds or all 16- and 17-year-olds from juvenile jurisdiction, making them adults for purposes of criminal prosecution.

As of the end of the 1997 legislative session, 28 States excluded certain categories of juveniles from juvenile court jurisdiction (see table 2). In 1996-97, Arizona and Massachusetts enacted new exclusion laws, and Hawaii and Kansas repealed their exclusion laws. Twelve States modified existing exclusion laws: 12 States added crimes; 1 State lowered the age limit; and 1 State added "lesser-included" offenses (i.e., offenses that fall outside those that are excluded are joined with listed excluded offenses) (see table 3).

Other Provisions

Reverse waiver. At the end of 1997, 23 States provided for reverse waiver, whereby a juvenile who is being prosecuted in criminal court may petition to have the case transferred to juvenile court for adjudication or disposition. Reverse waiver statutes can mitigate sweeping exclusion or direct file provisions.

Once an adult/always an adult. At the end of 1997, 31 States had "once an adult/always an adult" exclusion provisions (see table 2). Such provisions require that once juvenile court jurisdiction is waived or the juvenile is prosecuted (and typically convicted) in criminal court, all subsequent cases involving thatjuvenile will be under criminal court jurisdiction. In 1996-97, Arizona, Indiana, Michigan, and Oklahoma enacted "once an adult/always an adult" provisions.

State Legislative Responses to Violent Juvenile Crime: 1996-97 Update Juvenile Justice Bulletin   ·  November 1998