Juvenile Justice Reform Initiatives in the States

Juvenile Transfer to Criminal Court

Over the past 20 years, States have significantly expanded legislation allowing for prosecution of juveniles in adult criminal court. This trend has increased in recent years to permit transfer to adult court at lower ages and for more offenses.221 According to NCSL, 17 States in 1995 further expanded or amended their waiver statutes.222

Today, all 50 States and the District of Columbia allow for juvenile prosecution in criminal court by one or more transfer mechanisms, according to GAO.223 The most common mechanism is judicial waiver, which gives juvenile court judges discretion to waive juvenile cases to adult criminal court. Other transfer mechanisms include direct file, which provides prosecutorial discretion to file criminal charges against juveniles directly in criminal court, and statutory exclusion, which mandates juvenile prosecution in adult court.224

The widespread enactment of legislation enhancing juvenile exposure to criminal prosecution is a direct response to reported escalations of juvenile violent crime in recent years. According to OJJDP, the number of serious crimes, such as murder and aggravated assault, committed by juveniles increased 68 percent from 1988 to 1992.225 Despite recent declines, these rates may worsen, according to reports cited by the Campaign for an Effective Crime Policy (CECP), which predicts that juvenile violent offenses will continue to rise as the number of youth ages 14 to 17 increases 20 percent by the year 2005.226

The dramatic expansion in transfer legislation is based on the premise that some offenses warrant criminal prosecution and some juveniles are beyond rehabilitation. Consequently, State legislation emphasizing accountability by violent juvenile offenders focuses on transferring serious, violent juvenile offenders and habitual offenders, according to GAO.227

The impact of recent legislation providing for enhanced transfer is unclear. Less than 2 percent of all formal juvenile delinquency cases -- were judicially waived each year from 1988 to 1992. In 1988, only 1.2 percent of all cases were waived to adult criminal court, or 7,005 of 569,596 cases. The number of judicially waived cases steadily climbed to 11,748 of 743,673 cases in 1992, to comprise 1.6 percent of all cases.228

Of the small number of juvenile cases waived to criminal court, more nonviolent offenders were waived than violent offenders. Nonviolent offenders comprised 66 percent of all juveniles waived to adult court in 1992, according to GAO.229 CECP reports that nonviolent offenders represented 57 percent of all cases waived in 1993.230

These statistics do not include juvenile transfers to criminal court via a prosecutor's exercise of concurrent jurisdiction (direct file) authority and statutory exclusion. It is unlikely that the above-mentioned statistics would change significantly, however, given a recent GAO survey indicating that judicial waiver accounts for the majority of juveniles prosecuted in adult court.231 Nor do these statistics include waivers made pursuant to recent expansions of transfer legislation. Clearly, additional studies are needed to determine whether this expansive transfer legislation has led to increased juvenile criminal prosecution of serious, violent, and repeat juvenile offenders.

In addition, more analysis needs to focus on the impact of juvenile criminal prosecution. The current data, including results from studies in Idaho, New Jersey, and New York, indicate that expanded transfer provisions over the past 20 years have not deterred juvenile crime. Separate studies in Florida and Minnesota confirm that juveniles transferred to adult criminal court have higher recidivism rates than juvenile offenders retained in juvenile court.232

For example, a study reported by CECP that analyzed recidivism rates of juveniles prosecuted in Florida criminal courts found that juveniles prosecuted as adults were more likely to commit additional crimes and more serious offenses upon release than their counterparts adjudicated in juvenile court.233

Moreover, studies report conflicting findings on whether juveniles receive harsher or longer sentences in adult court.234 Thus, it is not clear whether transfer policies are serving their intended goal of enhancing punishment and deterring recidivism.

Types of Juvenile Transfers

Judicial waiver, statutory exclusion, and direct file are three mechanisms used to transfer juvenile offenders to adult court. Judicial waiver is the most popular method; 47 States and the District of Columbia provide judicial discretion to waive certain juveniles to criminal court. Thirty-seven States and the District of Columbia have one or more statutory exclusion provisions, and 10 States and the District of Columbia have direct file provisions.235

Other mechanisms to enhance juvenile transfers to adult criminal court include presumptive waiver, which mandates juvenile transfer unless the juvenile offender can prove he or she is suited to juvenile justice system rehabilitation. Usually the State bears the burden of proof to show that a juvenile should be transferred to adult court. Presumptive waiver shifts the burden of proof to the juvenile to show that he or she should not be transferred. Twelve States and the District of Columbia provide for presumptive waiver in certain instances, such as serious felonies, according to NCJJ and the Institute for Law and Justice (ILJ). NCJJ reports that nine of these jurisdictions have enacted their statutes since 1992. ILJ reports that New Jersey relies solely on presumptive waiver.236

Eighteen States have enacted "once waived, always waived" legislation, under which a juvenile once waived to adult court subsequently must be charged in criminal court regardless of the offense. For example, in Virginia, any juvenile previously convicted as an adult is excluded from juvenile court jurisdiction.237 In addition, 10 States permit and 12 States mandate a judge to order waiver in circumstances in which the offender previously has been adjudicated delinquent.238

Regardless of the statute, prosecutors maintain a critical role in determining the forum of prosecution. In addition to direct file legislation, prosecutors may charge a youth with an offense mandating statutory exclusion and transfer to adult court. NCJJ observed that prosecutorial discretion in the absence of guidelines for the exercise of that discretion can result in inconsistent treatment of juvenile offenders and urged legislation providing uniform prosecutorial guidelines.239 NCJJ notes that a 1995 Utah State court decision found unconstitutional the State's direct file legislation on the basis that the legislation infringed on a State constitutional provision guaranteeing the uniform operation of State law.240

In addition, several States provide statutory measures for ameliorating the consequences of waiver and transfer decisions. For example, 22 States allow criminal court judges to return statutorily excluded or direct-filed cases to juvenile court, which accounts for more than 40 percent of the States that exclude youth from juvenile court or direct file juveniles to adult court, according to NCJJ.241 In addition, 17 States authorize criminal courts to review juvenile court waiver decisions and/or prosecutorial direct filings, according to ILJ.242

Transfer Provisions and Trends

State policymakers designate different ages at which individuals no longer may be adjudicated delinquent in juvenile court. For example, original juvenile court jurisdiction extends through age 17 in 37 States and the District of Columbia, age 16 in 10 States, and age 15 in 3 States.243 Beyond those ages, individuals are deemed to be adults and must be held criminally responsible for their actions and prosecuted in criminal court.

Juvenile court judges may weigh a variety of factors in determining whether to waive juveniles under their jurisdiction to adult court. All States have incorporated the constitutionally required factors enumerated by the U.S. Supreme Court.244 These factors include the seriousness of the alleged offense and the need to protect the community; whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner; whether the alleged offense was against a person or property; the prosecutive merit of the complaint; whether the juvenile's associates will be tried in adult criminal court; the juvenile's sophistication, maturity, record, and previous history; and the reasonable likelihood of rehabilitation.245

Legislators have expanded transfer provisions by providing or mandating transfer for certain offenders based on offense and age. During the past 4 years, 24 States added crimes for which juveniles can be criminally prosecuted, and 6 States lowered the minimum age for transfer to 14.246

Many of these State provisions mandate or allow transfer of those juveniles charged with any conduct that would constitute a felony if committed by an adult. Thirteen States mandate and four States permit this type of transfer for juveniles 16 and older. Mandatory transfer provisions also apply to certain offenders age 14 and older in Connecticut, Idaho, the Virgin Islands, and West Virginia, and age 13 and older in New York. Discretionary transfers apply to offenders as young as age 10 in South Dakota and Vermont.247

Alarmed by reports that gun homicides have nearly tripled since 1983,248 several States have enacted transfer provisions for juveniles who commit offenses with firearms. In Indiana, Mississippi, and Oregon, juveniles who violate certain firearms laws must be prosecuted as adults. Illinois mandates criminal prosecution of juveniles age 15 and older who violate the State's gun-free-school-zone laws. A juvenile age 14 or older in Arkansas, age 16 or older in Kansas, and under age 18 in the District of Columbia may be transferred to adult criminal court for a violation of those jurisdictions' weapon-free-school-zone laws.249

Some legislatures require any juvenile, regardless of age, to be transferred for certain offenses. For example, in West Virginia, any child who commits a violent criminal act must be prosecuted in adult criminal court.250 In New York, any child with a specific prior record of offenses who commits a felony must be criminally prosecuted.251 In Florida, any juvenile who commits auto theft or carjacking resulting in serious injury must be prosecuted in criminal court.252 In addition, several States provide judicial discretion to waive any juvenile regardless of age to criminal court based on the specific offense.

According to NCSL, 16 States expanded their transfer provisions in 1995. Alaska, Arkansas, Delaware, Indiana, Louisiana, Minnesota, North Dakota, Oregon, Tennessee, Utah, and West Virginia added offenses for discretionary or mandatory juvenile prosecution in adult criminal court. Arkansas, Idaho, Iowa, Nevada, and Ohio enacted different types of once waived, always waived legislation.253

In addition, in 1995 many States established lower ages at which juveniles may be prosecuted in criminal court. For instance, Idaho passed legislation providing for waiver of juveniles under age 14 who commit certain felonies. Nevada lowered from 16 to 14 the age at which juveniles are subject to discretionary judicial waiver. West Virginia also lowered from 16 to 14 the age of discretionary transfer for certain juveniles charged with serious crimes. New Hampshire and Wisconsin lowered the maximum age of original juvenile court jurisdiction from 17 to 16.254

New York has enacted broad legislation providing for the transfer of juveniles to adult criminal court. In that State, juveniles may be prosecuted in adult criminal court at age 13 and older when charged with a violent felony. Juveniles with a specific prior record of offenses are prosecuted in adult criminal court at age 14 and older when charged with robbery, burglary, or assault and at any age when charged with a felony.255 Moreover, in New York, all 16- and 17-year-olds are prosecuted in criminal court.256 According to a New York Times editorial, Governor George Pataki wants to send all 16-year-olds currently in juvenile facilities to adult prisons, regardless of the offense.257

Florida has followed in this legislative trend. In that State, prosecutors may file charges directly in criminal court against any juvenile age 16 or older who commits a felony, any juvenile age 14 or older who commits a violent felony or burglary, and any juvenile who commits a homicide. In addition, juvenile court judges may waive to criminal court any juvenile age 14 or older based on certain findings.258

Offenders Judicially Waived to Criminal Court

  Of the small fraction (less than 2 percent) of juvenile cases judicially waived to criminal court, drug offenders from 1988 to 1992 had the highest likelihood of waiver, according to a GAO study. The judicial waiver rate for drug offenders was 3.1 percent in 1992, down from 4.4 percent in 1991. Offenses against the person consistently ranked second, with a 1992 waiver rate of 2.4 percent. Offenses against property ranked third, with a 1992 rate of 1.3 percent, and offenses against public order had a rate of 0.8 percent.259

Moreover, nonviolent offenders comprised 66 percent -- the clear majority -- of all juveniles waived to adult criminal court in 1992, according to GAO's transfer study. Nonviolent offenders included property offenders, who constituted the largest proportion of all waived cases at 45 percent; drug offenders, who made up 12 percent of waived cases; and other offenders, at 9 percent. In contrast, 34 percent of cases waived were offenses against the person.260

According to OJJDP, another study reported that nonviolent offenders in 1993 continued to make up the majority of waived cases, representing 57 percent of all cases waived (38 percent of cases waived were property offenders, 10 percent were drug offenders, and 9 percent committed offenses against the public order). On the other hand, that study reported that offenses against the person rose to 42 percent of all waived cases.261

As mentioned, transfer legislation targets violent offenders as well as repeat offenders. These studies do not indicate, however, if any of the large numbers of nonviolent offenders waived to adult criminal court had a history of violent offending or were repeat nonviolent offenders.

Impact of Waiver and Transfer

Juvenile waiver and transfer provisions have a tremendous impact on a young person's life. Prosecution in criminal court exposes juveniles to the same penalties as adults. They may face a life or death sentence, incarceration in State prison, and a permanent criminal record with attendant disabilities. Juveniles adjudicated in juvenile proceedings, on the other hand, generally must be released at age 21, receive rehabilitative treatment in a juvenile facility, and may be permitted to have their juvenile records expunged.262

Moreover, as mentioned previously, studies suggest that juveniles criminally prosecuted and incarcerated in an adult facility have the same or higher recidivism rates. Other studies have also found that youth incarcerated in adult institutions are five times more likely to be sexually assaulted, twice as likely to be beaten by staff, and 50 percent more likely to be attacked with a weapon than their counterparts in a juvenile facility.263

The NCJFCJ advocates caution in juvenile transfer. The council maintains that:

Juvenile delinquency jurisdiction should be to age 18 in every State. In most cases, juvenile offenders can be effectively maintained in the juvenile justice system. In rare instances, the most violent offenders cannot be rehabilitated within the juvenile system and should be transferred for adult prosecution. However, the decision to transfer should only be made by the juvenile or family court judge.264

221. Torbet, supra note 154; Campaign for an Effective Crime Policy, Public Policy Reports: A Series of Reports on Major Issues in Criminal Justice: The Violent Juvenile Offender: Policy Perspective 5 (July 1996) [hereinafter Campaign].

222. Lyons, supra note 111, at 3, 13­14.

223. U.S. General Accounting Office, Report to Congressional Requesters, Juvenile Justice: Juveniles Processed in Criminal Court and Case Dispositions 1 (Aug. 1995) [hereinafter GAO Transfer].

224. Campaign, supra, note 221, at 5.

225. GAO Transfer, supra note 223, at 1 (citations omitted).

226. Campaign, supra note 221, at 2.

227. GAO Transfer, supra note 223, at 7.

228. Id. at 2. The fractional rise from 1.2 to 1.6 percent represents an increase of 33 percent from 1988 to 1992.

229. Id. at 11.

230. Campaign, supra note 221, at 5.

231. GAO Transfer, supra note 223, at 20.

232. Campaign, supra note 221, at 6.

233. Id. at introduction, p. 6.

234. Torbet et al., supra note 154, at 11.

235. GAO Transfer, supra note 223, at 21.

236. Neal Miller, Institute for Law and Justice, Judicial Waiver and its Alternatives: A Legal Fact Sheet (Draft Report) 2 (Oct. 18, 1996) [hereinafter Miller, Judicial Waiver]; Torbet Et. Al., supra note 154, at 8.

237. GAO Transfer, supra note 223, at 17.

238. Model Handgun Code, supra note 79, at 38.

239. Torbet Et Al.,supra note 154, at 12.

240. Id. (citing State v. Mohi, 901 P.2d 991 (Utah 1995)).

241. Id. at 8.

242. Miller, Judicial Waiver, supra note 236, at 4.

243. Torbet Et Al., supra note 154, at 6.

244. GAO Transfer, supra note 223, at 13­14.

245. Id.

246. Torbet Et Al., supra note 154, at 8.

247. Model Handgun Code, supra note 79, at 38.

248. Prosecuting Juveniles as Adults, N.Y. Times, May 20, 1996, at A14.

249. Model Handgun Code, supra note 79, at 38­39.

250. Id.

251. Neal Miller, Institute for Law and Justice, Judicial Waiver and its Alternatives: State Legislative Summaries (Draft Report) 33 (Oct. 17, 1996) [hereinafter Miller, Summaries].

252. Id. at 10.

253. Miller, Judicial Waiver, supra note 236, at 3, 13­14.

254. Torbet Et Al., supra note 154, at 6.

255. Miller, Summaries, supra note 251, at 33.

256. N.Y. Fam. Ct. Act § 301.2 (McKinney 1983 & Supp. 1996); N.Y. Penal Law § 30.00 (McKinney 1987); N.Y. Crim. Proc. § 180.75 (McKinney 1993).

257. Prosecuting Juveniles, supra note 248.

258. Miller, Summaries, supra note 251, at 10.

259. GAO Transfer, supra note 223, at 11­12.

260. Id. at 11.

261. Campaign, supra note 221, at 5.

262. Torbet Et Al., supra note 154, at 12.

263. Campaign, supra note 221, at 6.

264. Id. at 6­7.

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