VI. Transfer/Waiver to Adult Court
The shift away from parens patriae and toward due process is evident in steps that emphasize punishment. Some states have adopted determinate sentencing statutes with an emphasis on penalties that are proportionate to the seriousness of the offense. Some states have enacted mandatory minimum provisions. This means that if the judge commits a child to the state youth authority, the law dictates that the youth must serve a certain minimum amount of time. Some states have adopted dispositional guidelines or suggested sentences for most adjudicated delinquents. Unless a case has some unusual factors, judges are supposed to sentence within the ranges stipulated in the guidelines.
Perhaps the ultimate example of this trend toward punitiveness is the move by many states to expand provisions for processing juveniles in adult criminal court rather than juvenile court. The decision to process a youth in adult court is a crucial one because it makes the juvenile subject to adult penalties such as lengthy incarceration in an adult prison and results in the creation of an adult criminal record, which is public and may hinder future opportunities for employment.
There are several methods that states use to place juveniles into adult court jurisdiction: transfer or waiver, statutory exclusion, prosecutorial waiver, and lowering the age of juvenile court jurisdiction. Traditionally, waiver or transfer was the primary method to place juveniles into adult criminal court. In 2004, a total of 46 states and the District of Columbia had statutes allowing judicial waiver (Griffin, 2005). The waiver decision is made at a hearing, which is analogous to the preliminary hearing in adult court. At a waiver hearing, the prosecutor must show probable cause that an offense occurred and that the juvenile committed the offense. In addition, the prosecutor must establish that the juvenile is not amenable to juvenile court intervention or that the juvenile is a threat to public safety. An example of nonamenability would be the case of a youth who is already on parole from a state training school for an earlier delinquent act who then commits another serious offense (e.g., armed robbery). In 2000, approximately 5,600 juveniles were waived to adult criminal court. This was considerably below the peak number of 12,100 cases waived in 1994. Forty percent of waived cases in 2000 involved a personal offense, and 36% involved a property offense (Puzzanchera, Stahl, Finnegan, Tierney, & Snyder, 2004).
Statutory exclusion, also called legislative waiver, means that state legislatures rule that certain offenses, such as murder, automatically go to adult court. In 2004, a total of 29 states had exclusion laws (Griffin, 2005). The list of offenses that are excluded from juvenile court jurisdiction typically includes murder, aggravated sexual assault, robbery with a firearm, and gang-related felonies.
Prosecutorial waiver (direct file/concurrent jurisdiction) is another method for placing juveniles into adult criminal court. State law gives juvenile court and adult court concurrent jurisdiction over certain cases. Depending on the offense, the age of the offender, and the youth’s prior record, the prosecutor decides whether to file the case in juvenile or adult court. In 2004, prosecutorial waiver (concurrent jurisdiction) was available in 15 states and the District of Columbia (Griffin, 2005). Another way to direct juveniles to adult court is for state legislatures to lower the maximum age of juvenile court jurisdiction.
It should be noted that 23 states allow for reverse waiver. This means that the criminal courts can return certain cases that they received due to mandatory judicial waiver, legislative exclusion, or prosecutorial waiver to juvenile court. It is also important to note that 31 states have “once an adult, always an adult” provisions. This means that all or certain categories of youths placed in criminal courts must automatically be processed in adult court for any subsequent offenses.
Still another development in this direction is blended sentencing. In blended sentencing, either the juvenile court or the adult court imposes a sentence, which can involve the juvenile or the adult correctional system or both correctional systems. The adult sentence may be suspended pending either a violation or the commission of a new crime. Fifteen states have juvenile blended sentencing schemes (the juvenile court imposes sentence), and 17 states have criminal blended sentencing laws (the criminal court imposes sentence) (Griffin, 2005).
These various transfer alternatives make it more and more likely that youthful offenders will be handled in the adult system. This action is counter to parens patriae but very much in line with public sentiments for harsher punishments regardless of the age of the offender. The “get tough on crime” movement has greatly impacted the juvenile justice system.