Pretrial Procedures
Transfer hearings
 Detention
 Intake
 Diversion
 Petition and pretrial release
 Bail and preventive detention
 Plea bargaining (adjustment)

Transfer to adult court
Transfer, waiver, bindover, removal
 Concurrent jurisdiction
 Excluded offenses (traffic, serious)

– Number of excluded offenses has
increased

Judicial waiver to adult court
Kent v. U.S.
Waived to adult court, despite requests
for a psychiatric evaluation, access to
social service file, motions for a
hearing
 Found guilty in adult court for
housebreaking and robbery, not guilty
by reason of insanity for rape

Kent v U.S. (1966)
Court ruled that cases of waiver
required:
 A hearing
 Access to counsel and access by
counsel to social service records
 Reason for the decision

Criteria to be
considered
Seriousness of offense
 Aggressive or violent
 Maturity of juvenile
 Record of the juvenile
 Public protection
 Potential for rehabilitation

Breed v. Jones
Petition filed and he was adjudicated
 Found unfit for juvenile court at
disposition hearing
 Transferred to adult court
 Found guilty
 U.S. Supreme Court determined that
this was double jeopardy (5th
amendment

Transfer hearings
Full hearing
 Notice
 Right to counsel
 Statement for reasons

Debate over transfer
Get tough vs. rehabilitation
 1% now transferred (drugs most
common)
 Cases waived increased in early
1990s, number has now been
decreasing

Debate
Waivers do not necessarily increase
public protection; result may be the
same in both juvenile and adult court
 In one study., only 3% of juveniles tried
in adult court received longer
sentences than they would have
received in juvenile court (1996)

Debate
However, in another study those
waived to adult court received
significantly greater sentences than
those retained in juvenile court (1986)
 Another problem is that transfers might
be motivated by political
considerations rather than the case

Debate
One study found that juveniles
transferred to adult court no more
dangerous than those retained
 Transfer decisions not consistent:
appears to be racial disparity
 Problem of prosecutorial discretion: in
some jurisdictions prosecutor makes
the decision

Debate
Need for transfer for very serious
cases: juvenile justice system not set
up to deal with such cases
 Juveniles transferred have greater
security risks, less swift punishment,
lower conviction rates, shorter
incarceration, higher recidivism

Detention
Temporary care of youths by the state
in a physically restricted facility
pending court disposition or transfer to
another placement
 Shelter care: temporary care in
physically unrestricting facilities

Detention
Movement to remove status offenders
and dependent/neglected to less
secure facilities, such as temporary
foster care
 60% of detainees are delinquent
 Many status offenders are runaways
 Increasing number of drug offenses

Detention
Increase in the use of detention
 Majority are detained briefly and
released to parents, screened by
intake probation officers
 No uniform criteria for detention
decisions
 Race, class and # of parents might
have an influence

Detention decision
NCCD recommends that the standards
should be: likelihood of new offense, a
danger to themselves or community, or
likelihood of running away
 Most jurisdictions require a detention
hearing to extend the period of
detention beyond 24 hours

Detention hearing
This hearing should be:
 Without delay
 Right to notice and counsel


Provision of services
Detaining juveniles in
adult jails
More common in rural areas
 Risk of victimization
 Few services
 Juvenile Justice and Delinquency Act
amended in 1989 to require states to
remove juveniles from adult jails
 Not clear how often this happens—
most common estimate 100,000/year

Intake
Screening of cases by the juvenile
justice system
 Decisions: send the youth home,
diversion, file a petition, file a petition
and detain
 Consent decrees and informal
probation or informal adjustment

Intake
Considerations: age, offense, prior
record, cooperativeness of child and
parents, whether the youth can get
appropriate services elsewhere
 Legal rights?
 Intake traditionally handled by juvenile
probation
 Increased role of the prosecutor

Diversion
Screening out children from the
juvenile court without judicial decision
 Roots: labeling theory
 Common criteria for diversion:
nonviolent or status offender, or
alcohol or drug problem, age, no
serious priors

Diversion
Variety of mechanisms through
probation, the court, the prosecutor.
Successful participation necessary to
avoid court action
 In some jurisdictions, 50% of youths
are diverted
 Net widening

Petition
Filing a petition—can be filed by
police, parents, probation, or other
social service agency
 If the child admits to the allegations, a
hearing might be scheduled and a
treatment plan developed
 Otherwise, adjudication hearing set

Pretrial
Probation does an assessment
 Right to notice (youth, counsel and
parents)
 Continued detention?
 No right to bail, because it is a civil
proceeding, can be released to
parents, detention is supposed to be
rehabilitative, not punitive

Bail
Some states do allow for bail for
youths
 All the problems of the bail system
then apply
 Without bail, youths have few rights

Preventive detention



Detaining a person because of his/her
suspected danger to the community and
because he/she might commit more crimes
Can a person be detained for acts he/she
has not yet committed?
Supreme Court eventually upheld
preventive detention for adults, but it is
seldom explicitly applied
Preventive detention

All states do allow for the preventive
detention of juveniles, because
although adults have a right to liberty,
juveniles have a right to custody, and
can be detained for their own
protection
Schall v. Martin
Detention based on prediction of future
behavior not a violation of due process
 Must be procedural safeguards, such
as notice, a hearing and a statement of
facts, before placement in detention

Plea bargaining
Not a part of the juvenile court
originally, not seen as necessary
because the court was there to help
 Increasing role of the prosecutor
 Most states have now addressed and
regulate the practice, but the amount
of regulation varies widely
 More formal in urban areas

Plea Bargaining



Considerable debate over whether it should
be used in the juvenile system
It appears to be much less common in the
JJS as compared to the adult system, but
on the increase
Less common because some of the
incentives to plea bargain are less important
in the juvenile system (I.e. dropping a felony
to a misdemeanor)