WHAT HAPPENS WHEN WE
TREAT JUVENILE
OFFENDERS AS ADULTS?
Class 10
Background Questions
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What does a waiver decision actually decide?
What are the rationales for waiver?
Role of waiver in the early juvenile court .. Still true?
Is waiver really a sentencing policy?
Historical Perspectives on
Transfer
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Historically, all transfer decisions were made by
Juvenile Court judges, either sui generis or on motion
of the prosecutor. Eligibility for transfer was not
regulated by statutes.
Early trends – expulsion as organizational
maintenance
Over time, eligibility for transfer was regulated by the
legislatures to include only certain types of offenses
or offenders. The criteria combined factors including
age and type of offense.
The decision was not reviewable
Procedural Formality: Kent
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Kent v. U.S., 383 U.S. 541
Juveniles who were waived to the adult court had
rights the same due process protections
guaranteed under Gault – right to counsel, notice
of charges, access to records, and notice or
reasons for waiver
Kent ruled that waiver could not be made based
solely on the discretion of the judge, and that the
court should promote standards to guide the
transfer decision and make it fair and consistent.
Waiver Standards under Kent
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The Supreme Court declined to state what standards
should apply, deferring to the individual states. The
Kent Court referred to a 1959 policy memorandum
from the U.S. District court suggesting principles to
guide judges in making transfer decisions. See id. at
565.
However, in an Appendix to the decision, they
endorsed guidelines that had been adopted by the
D.C. Circuit Court, and “suggested” that these
factors be considered by judges when making waiver
decisions:
“The determinative factors which will be considered by the Judge in deciding whether the Juvenile Court's
jurisdiction over such offenses will be waived are the following:
1. The seriousness of the alleged offense to the community and whether the protection of the community
requires waiver.
2. Whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner.
3. Whether the alleged offense was against persons or against property, greater weight being given to
offenses against persons especially if personal injury resulted.
4. The prosecutive merit of the complaint, i.e., whether there is evidence upon which a Grand Jury may
be expected to return an indictment (to be determined by consultation with the United States Attorney).
5. The desirability of trial and disposition of the entire offense in one court when the juvenile's associates
in the alleged offense are adults who will be charged with a crime in the U.S. District Court for the
District of Columbia.
6. The sophistication and maturity of the juvenile as determined by consideration of his home,
environmental situation, emotional attitude and pattern of living.
7. The record and previous history of the juvenile, including previous contacts with the Youth Aid
Division, other law enforcement agencies, juvenile courts and other jurisdictions, prior periods of
probation to this Court, or prior commitments to juvenile institutions.
8. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of
the juvenile (if he is found to have committed the alleged offense) by the use of procedures, services and
facilities currently available to the Juvenile Court.”
Jurisprudential and Policy Issues
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Rising juvenile crime rates from 1975-93 gave public
little confidence in:
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Juvenile courts capacity to attribute culpability
Rehabilitation programs to reform kids
Judges’ willingness to punish serious juvenile offenders
Changing social attitudes on adolescence, crime, and
punishment (Gangs, “Superpredators”)
Broader trend toward punitiveness and retribution,
and narrowing discretion of sentencing judges
Every state modified ‘boundary’ at least one way (and
sometimes more than one way) between 1992-97
Little research to say if this was a good or bad idea
Transfer as Law Reform
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Waiver raises every fundamental issue in juvenile justice:
conceptions of childhood and adolescence, immaturity
and culpability, separation of powers, and how and why
we sentence.
Starting in 1978, nearly all legislative activity was focused
on increasing the number of adolescent offenders that
were transferred to the criminal court
Expansion of role of legislatures and prosecutors in
drawing jurisdictional boundaries
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In a zero sum game, judges lost discretion to prosecutors
This era of legislation marked the end of the era of
Diversionary Jurisprudence in the Juvenile Court
Alternate Mechanisms for Waiver
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1978 as watershed
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NY Juvenile Offender Law – adult jurisdiction
Florida legislation – prosecutorial election +
Judicial Waiver
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Rebuttable, but ground rules are changing
Expansion of criteria for juveniles eligible for judicial waiver –
lower age, more offenses, addition of prior record as a factor
Shift of burden of proof from prosecutor to defense in judicial
waiver
Presumptive waiver – Court must consider waiver
Breed v Jones (421 U.S. 519) 1975
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Double jeopardy concerns require that waiver determination be
independent of fact-finding, independent of the merits of the
charge plus other factors
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But aren’t the factors weighted toward a finding of delinquency?
Isn’t this biasing or prejudicial?
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Prosecutorial waiver – prosecutor elects jurisdiction for
trial of case, not judge
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Courts have uniformly rejected arguments that Kent
constrains legislative definition of what goes to juvenile court
 no due process constraints on exercise of prosecutorial
discretion
Legislative Waiver
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Excluded categories of offenses and offenders
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Reverse Waiver
Judge can remand case from criminal to juvenile court for fact-finding
or sentencing
Correctional Waiver – blended and contingent sentencing, where
correctional authority has option to waive after initial period of
confinement
 Due process issues?
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CT 46b-127 (14+ for major felonies)
NY 1.20(42) (13+ for murder, 14+ for other major felonies)
Legislative Waiver or Exclusion
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Exclusion of specific categories of offenses and offenders
from the juvenile court (with option to “waive back” to
juvenile court)
US v. Bland (DC Cir. 1972) – upholds DC legislative exclusion
dropping age from 18 for murder, rape, burglary, robbery
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Legislative classifications are entitled to strong presumption of legality, set
aside if no grounds can be conceived to justify them
This is just prosecutorial discretion and rational classification by
Congress (can define what constitutes a child)
Wright dissent  believes Kent waiver hearing eliminates option of
prosecutorial direct file
State v. Behl (Minn. 1997) came to the same conclusion
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because no person has fundamental right to juvenile
adjudication, thus only need reasonable means to a
permissive objective
• here a legitimate state objective of public safety
Prosecutorial Waiver (Direct File)
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Prosecutor elects jurisdiction for trial of case, not judge
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Prop 21 – Prosecutorial Authority
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Mandatory waiver, prosecutorial election of jurisdiction for many other crime categories,
increases in punishment severity and length, registration of gang offenders
Manduley v. Superior Court of San Diego County (Cal. Sup. Ct. 2003) – direct file is not
a violation of separation of powers – because charging powers have long been made
in the prosecutor’s office
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Courts have uniformly rejected arguments that Kent constrains legislative
definition of what goes to juvenile court  no due process constraints on
exercise of prosecutorial discretion
Judiciary not usurped because, as petitioners concede, legislature has power to take
away juvenile court dispositions from all minors
Which also defeats the due process claim
There is no equal protection because law demands evaluations of individual cases and
decision, classification therefore not created by the law itself
State v. Mohi (UT 1995) only case to reject prosecutorial direct file on
constitutional grounds
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Perhaps legitimate objective, but cannot be reconciled with “uniform operation” because
the selection process is arbitrary and standardless
Prosecutors must be required to have some legitimate reason for prosecuting as adult
Pennsylvania Statute (Exclusion with
possibility of Reverse Waiver)
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What is excluded? Statutory Exclusion42 Pa. C. S. Sec. 6302
Murder (no age)
Other (15): Voluntary manslaughter or the attempt, conspiracy, or solicitation to commit murder or
voluntary manslaughter, if (1) a deadly weapon was used or (2) the child was previously adjudicated
delinquent for rape, involuntary deviate sexual intercourse, robbery, robbery of a motor vehicle,
aggravated indecent assault, kidnapping, voluntary manslaughter, or any attempt, conspiracy, or
solicitation to commit murder or any of these offenses.
Person (age 15): Rape, involuntary deviate sexual intercourse, aggravated assault, robbery, robbery of
a motor vehicle, aggravated indecent assault, kidnapping, or any attempt, conspiracy, or solicitation to
commit any of these offenses if a deadly weapon was used; also any of the above offenses (except
aggravated assault) if committed by a child who was previously adjudicated delinquent for one of the
same offenses, or for voluntary manslaughter or the attempt, conspiracy, or solicitation to commit
murder or voluntary manslaughter.
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Reverse Waiver 42 Pa. C. S. Sec. 6322
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If a child accused of an excluded offense (see Statutory Exclusion) files a petition requesting a
transfer from criminal to juvenile court and establishes by a preponderance of the evidence
that a transfer will serve the public interest, the court may order such a transfer.
The court must make the transfer determination after considering the same factors that bear on a
juvenile court's decision to transfer a case for criminal prosecution (see Discretionary Waiver). Any
transfer order must be supported by "specific references to the evidence," and is subject to
expedited appellate review. Once a case has been transferred from adult criminal court, the
juvenile court may not retransfer it to adult court.
Reverse Waiver
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A response to too much waiver from legislative/direct file statutes
Sometimes before fact-finding, sometimes after but before sentencing (New
Mexico, Massachusetts, FL)
FL Stat. §985.233 – in post-conviction reverse waiver, judge to look at Kentlike criteria (seriousness of offense, amenability, available facilities, etc.)
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but has to be sentenced as an adult if sentenced to death or life imprisonment,
BUT if convicted of a lesser included offense or other felony in adult court then
may be sentenced as an adult, as a juvenile delinquent, or as juvenile criminal
Troutman v. State (Fla. 1993) holds that juvenile convicted in criminal court
may still receive special treatment as a juvenile and required judges to
specifically (and individually) decide a youth’s suitability for
juvenile or adult sanctions
Walker v. State (Ark. 1991) holds that a youth who was moving party bore
the burden of proof in such a situation, and judge did not have to give equal
weight to all factors (aka could decide public safety just outweighed)
Case Study - California Judicial Waiver
Statute
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707 WIC Juvenile Fitness Hearings
Presumptive waiver for enumerated offenses at age 16
(burden of proof on juvenile that she or he should not be
found unfit for juvenile court)
Eligible for waiver at age 14 for enumerated offenses
Presumptive waiver at age 14 for murder and other
“special circumstances” crimes
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With consideration of mitigating circumstances
Victim impact statements permitted during hearing
CA Fitness Criteria
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….The minor would be amenable to the care, treatment,
and training program available through the facilities of the
juvenile court based upon an evaluation of each of the
following criteria:
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The degree of criminal sophistication exhibited by the minor.
Whether the minor can be rehabilitated prior to the
expiration of the juvenile court's jurisdiction.
The minor's previous delinquent history.
Success of previous attempts by the juvenile court to
rehabilitate the minor.
The circumstances and gravity of the offenses alleged in the
petition to have been committed by the minor.
“Any or all for presumptive waiver”
Appellate Cases
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People v. Jones (Cal. 1998)
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2 church going 15 year olds on marijuana and alcohol rob store, gun
goes off and owner killed
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Appellate opinion - Not waiving to adult court here an abuse of
discretion based on above factors
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Because (1) planned and executed robbery means sophistication, (5)
high severity of mix of intoxication plus gun (and not too intoxicated
to carry this out)
Dissent: should give more deference to juvenile court, not
review de novo
– Reversals like this are rare
Most states allow hearsay evidence, characterizing waiver
hearings as sentencing or dispositional hearings, not factfinding
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if juvenile loses, no appellate review of waiver decision until/unless
conviction, but prosecution can appeal immediately (because of double
jeopardy)
Case Study - Michigan
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Two-part hearing process,
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probable cause,
whether best interests of child and public to grant waiver based on
these criteria: (a) seriousness of alleged offense (extra weight by
statute); (b) culpability of juvenile; (c) juvenile’s prior record (extra
weight by statute); (d) juvenile’s programming history; (e) adequacy of
programming/ punishment available; (f) dispositional options available for
the juvenile
Probable cause burden is on prosecution with
evidentiary rules, but for second phase rules of evidence
don’t apply and prosecution bears preponderance of
evidence
Court-ordered examinations by social workers,
psychiatrists, psychologists may not testify at a
subsequent criminal proceeding without juveniles written
consent
Appellate Cases
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People v. Hana (Mich. 1993)
Miranda issues alleged - suspect told warnings and police
actually tell him to stop confessing
5th and 6th Amendment rights do not apply at dispositional
prong of waiver stage
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Public policy of balancing juvenile v. community interests
would be best served by relaxing evidentiary standards
Dissent: rehabilitative ideal thrown out with a waiver hearing, this is
out-and-out sentencing decision
Ramona v. Superior Court (Cal. 1985)
What if juvenile testifies at certification hearing? holds that
this testimony may not be used at later criminal trial or
adjudication
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Like 4th Amendment hearings, use immunity, for similar rationale
Legislative Intentions of Expanded
Waiver Laws
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Increase the certainty of punishment
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Reduce the “leniency gap” between juvenile and adult
court
Provide punishments that are proportionate in
length and severity of conditions to the severity of
the crimes that juveniles commit
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Increase the lengths of punishment for adolescents
charged with serious crimes
Increase the severity of punishment by exposing
adolescent offenders to harsh conditions of adult
punishment
Who is Waived?
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Difficult research question, since there are so many
mechanisms
Limited by data problems, as well.
In both prosecutorial and judicial waiver, there is
consistent evidence of racial disparity, but effect is
masked by disparities in earlier processing decisions.
Some places have unique rules, such as waiver in any
case where there is a gun used in the crime
Best guess – about 250,000 juveniles per year.
No change in laws or trends since crime decline
beginning in 1993
Triumph of punitive jurisprudence, contradicts new
evidence on immaturity and the jurisprudence of
adolescence
What Happens When Waived?
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Again, little research on this issues. Most kids charged
with violent crimes do go to either jail or prison
Sentences are longer -- no evidence of a “leniency gap”
Many first offenders go to prison if waived, depending
on the structure of the waiver and adult sentencing
laws
Under legislative exclusion systems, many kids are
waived back, about one in three in urban areas. This
reflects the broad sweep of these laws that capture
many “false positives” with those truly who present
danger to the community
How Effective is Transfer?
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Seven studies from several states, and using several
different study designs, all show that juveniles
prosecuted as adults have higher rearrest rates than
juveniles whose cases are heard in the juvenile court
The same studies show that kids who are transferred
to adult court are more likely to end up in jail or
prison as they get older
Only one study has shown the opposite effect, but the
data for that study stopped in 1992, when juvenile
crime rates were at their peak. The picture changed
dramatically starting in 1993, and so too did our
understanding of the effects of punishment.
Empirical Research
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Florida Studies
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Minnesota Studies
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Myers (2000), county comparisons
State Aggregates
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Fagan (1996, 2003)
Pennsylvania
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Podkopacz and Feld (1996, 1998)
New York-New Jersey Comparison
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Frazier, Bishop and colleagues (1996, 1997 and current
replication)
NY JO Law (Singer and McDowall, 1996), Idaho (2002),
Barnowski (2003) on WA law
Levitt (1998)
CDC Review – No positive effect, waiver does
more harm than good
COLUMBIA RESEARCH PROGRAM
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Research on the comparative impacts of juvenile
versus criminal court sanctions on recidivism for
critical groups of adolescent felony offenders
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Research on the conditions of confinement and
correctional experiences for adolescents in the
juvenile and adult correctional systems to explain
recidivism outcomes
RECIDIVISM STUDY
 Design: Matched
samples in two states
where kids are locked up either as
juveniles or adults
 7 year followup period to see if they
were rearrested or ended up back in
jail or prison
CUMULATIVE PROBABILITY OF REARREST
Any Crime
1.6
1.4
1.2
1.0
.8
.6
STATE
.4
.2
NY
0.0
NJ
-1000
FAILTB2
0
1000
2000
3000
CUMULATIVE PROBABILITY OF REARREST
Violent Crime
.6
.5
.4
.3
.2
STATE
.1
NY
0.0
NJ
-1000
FAILTV2
0
1000
2000
3000
CUMULATIVE PROBABILITY OF
RE-INCARCERATION
10
8
6
4
2
STATE
0
NY
-2
NJ
-1000
RINCTIME
0
1000
2000
3000
SUMMARY OF RECIDIVISM
FINDINGS
Recidivism
Measure
Statistical
Significance
Log Odds
Any Rearrest
Violence
Property
Weapon
Drug
ns
.001
.001
ns
.001
-1.85
1.44
-0.65
Re-incarceration
.05
1.26
COMPARING CORRECTIONAL
EXPERIENCES
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Interviews with matched samples of adolescent
offenders either in juvenile or adult correctional
institutions in four states (NY-NJ, CA-AZ)
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415 kids interviewed when they were within six
months of release
Figure 1. Institutional Climate Scaled Scores
by Type of Institution
9
8
Total Juvenile
7
Total Adult
Scaled Scores
6
5
4
3
2
1
0
Social climate
scale*
* p <0.05
Opportunity
scale
Fairness scale
Behavioral
orientaiton
scale*
Figure 4. Mental Health Measures: Current Functioning
(BSI) by Type of Facility
3.0
Total Juvenile
Average Score
2.5
Total Adult
2.0
1.5
1.0
0.5
0.0
m
So
i
at
*p < 0.05
t io
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n
e
siv
s
e
bs
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om
-C
v
lsi
u
p
pe
er
t
In
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si
en
S
l
na
o
rs
ity
tiv
*
pr
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n*
io
s
es
e
xi
n
A
*
ty
i
til
os
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ty
i
ob
h
P
y*
et
i
nx
cA
r
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n
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Id
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i
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m
cis
*
na
tio
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d
Ad
m
te
lI
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Figure 5. Mental Health Measures: PTSD Symptoms
(IES-R) by Type of Facility
3.0
Total Juvenile
2.5
Total Adult
Average score
2.0
1.5
1.0
0.5
0.0
Intrusion*
*p < 0.05
Avoidance*
Hyperarousal*
OVERALL STUDY RESULTS
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Adolescents prosecuted as adults are significantly
more likely to be re-arrested for violence and
property crimes, and to be re-incarcerated
Adolescents sentenced as adults report weaker
therapeutic environments and greater fear
Adolescents sentenced as adults report more adverse
psychological outcomes
Why Do They Come Out Worse?
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Stigma
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Not confined to incarceration
From the process
From the sanctioning experience
Socialization
Trauma
Exclusion
Policy Implications
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Is there a policy implication? Role of social facts in law and
policy
Sometimes policies have unintended, negative
consequences. In this case, a policy designed to deter
juvenile crime actually made it worse
One of the reasons is that too many kids are transferred
under existing laws, there are lots of “false positives”
Our findings are consistent with other studies. We can
confidently predict that these results would happen
elsewhere
Keeping kids in the juvenile court whenever possible
minimizes the risk of “toxic” exposure of youths to harsh
adult correctional environment
Complications for re-entry programming and services for
adolescents
The Tension between
Jurisprudence and Social Policy
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The demand for punishment is integrated into
legal and political culture and expresses itself
through sentencing practices that diminish
adolescence as a legal or scientific concept
This new jurisprudence of “desert” triumphs even
in the face of evidence that it does not help
control crime and may increase public risk
Some reformers have tried to recreate the
juvenile court within the criminal court, with some
success
Issues are not confined to the U.S., spreading
across west.
Law Reform
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Balancing harm: 200 versus 2000
Decide on a principle, make a hard choice
Avoid redundancy
Set legal standards for criminal court
Regulatory mechanism