Transfer, Waiver, and Blended Sentencing in the Juvenile Justice System
Late in the 19th century, public opinion started to change about how to handle children who committed crimes and began to recognize childhood as a distinctive phase of human development. Many argued that juveniles were developmentally different than adults and more responsive to rehabilitation efforts, and therefore should not be held criminally responsible for their actions (Hansen, 2001). In 1899, Illinois established the first juvenile court in response to the growing concern of how to deal with those children that commit crime. The court was created with the belief that juveniles should receive different treatment than adult who commit crimes. The main principles of the Illinois court were to provide juveniles with individualized treatment in pursuance of the parens patriae philosophy, with the state assuming the parental role in looking out for the best interest of the child (Kooy, 2001).
Prior to the creation of the separate juvenile courtsystem, juveniles were forced to deal with the grim realities and severe penalties as adults in the criminal justice system. When Illinois created the juvenile system, their original objectives for the court were to get the children out of the harsh adult prison settings, to focus more attention on rehabilitating juveniles rather than punishing them, to provide greater ease and confidentiality in the courts proceedings, and to further remove the new juvenile process from the conventional adversarial criminal justice process.
Kent v. United States
A landmark case for the juvenile justice process was Kent v. United States, because the U.S. Supreme Court concluded that juveniles had a right to a hearing before being transferred to adult criminal court, representation of counsel, access to social service records, and a written statement of the reasons for waiver (Mole and White, pg. 2, 2005). This case was instrumental in landing constitutional rights to juveniles who have been accused of committing a crime after decades of being denied constitutional protection.
Breed v. Jones
This important case took place in 1975; the Supreme Court ruled it was a violation of the double jeopardy clause of the fourteenth amendment to prosecute a juvenile in criminal court following adjudicatory proceedings in juvenile court (Lawrence, 2008, pg. 267). This case was vital because it made it mandatory to hold a hearing strictly to determine if jurisdiction should stay within the juvenile system or be transferred to criminal court.
Juvenile Crime Statistics and Trends
Despite a long history of recognizing a separate juvenile justice system with unique needs for juveniles under the age of 18, states have steadily began to alter their policies to treat more and more juveniles as fully responsible and competent adults. Rather than being treated with much needed services and programs suited to help them stay out of trouble, these juveniles are being placed in an adult system geared toward punishment and in institutions that are completely unqualified to effectively provide the necessary treatment and rehabilitation to youth offenders.
Transfer and Waiver Laws
For a case to be waived to criminal court, a hearing process must take place first so evidence can be presented to show whether or not the case should be waived. In the course of the hearing, the prosecution has the burden to prove up a ???preponderance of the evidence,??? which is a lesser standard of proof. Only six states hold to the higher burden of proof standard ???clear and convincing evidence??? when determining if a particular case should be waived (Griffin, Torbet, & Szymanski, 1998). It is interesting that the courts would require a lesser standard of proof, as if they want to send the case to criminal court.
The direct file waiver concerns some experts because it gives exclusive authority to the prosecutor and removes the sitting judge from having a say in the transfer decision (Lawrence, pg. 270, 2008). Prior to the direct file transfer, courts took into account sociological factors when deciding if it is necessary to transfer a juvenile offender to adult court. This practice runs counter to the way it was. Barry Feld (2004) has expressed concern over the practice of allowing elected prosecutors, who are subject to public and political pressure and are not likely to rely on any social background information, to make the important decision of jurisdictional waiver: ???The shift of sentencing discretion from the judicial branch to the executive branch via direct file legislation raises a lot of sentencing policy questions about institutional competencies and justice administration??? (Feld, 2004, pg. 600). Simply put, Feld thinks that prosecutors are less likely to make well-informed decisions about transfer compared to impartial judges who are equipped with clinical and background evidence and are guided by a set of standards when considering waiver to adult court. The biggest problem is that it removes the due process element that is established in Kent.
Twenty-eight states have statues that remove certain categories of offenses entirely for the jurisdiction of the juvenile court (Mole & White, 2008, pg. 9). This kind of transfer law is called *Statutory Ex*clusion. What makes this waiver unique is that it takes all authority and discretion out of the hands of both the judge and the prosecutor. These jurisdictions define particular crimes for which juvenile offenders are automatically excluded from juvenile court jurisdiction. Once the decision is made to charge the juvenile with an excluded offense, the case must be file in criminal court (Lawrence and Hemmens, 2008, pg. 271). Statutory exclusion is part of the same trend toward get-tough legislation that has shifted decision making from judges to legislators and prosecutors (Feld, 2000). It also bypasses the mandated transfer hearing process that is founded in Kent. For example, in Mississippi, a broad statutory exclusion law sends all 17-year-olds accused of a felony into the adult criminal court system (Griffin et al., 1998).
In 23 states, lawmakers created a provision that is referred to reverse waiverwhere a juvenile who has been transferred to criminal court may file a petition to have their case transferred back to the jurisdiction of the juvenile court. This statute basically authorizes the adult criminal court to consider the appropriateness of a juvenile case for criminal prosecution, regardless of whether the juvenile case is there due to waiver, transfer, or exclusion (Lawrence and Hemmens, 2008, pg. 271). This provision is to provide some balance to the wide range of discretion that prosecutors have under direct file statutes. In considering a juvenile??™s petition for juvenile court jurisdiction, the criminal court must consider the same criteria that are used by the juvenile courts in transferring juveniles to criminal court (Griffin et al., 1998, pg. 10).
Fifteen states have developed sentencing reforms that are alternatives to waiver and transfer of juvenile offenders to criminal court (Lawrence and Hemmens, 2008, pg. 345). These alternatives are referred to as Blended Sentencing. These laws are designed for serious offenders who are sentenced to a juvenile or adult correctional facility after being adjudicated in juvenile court or convicted in criminal court (Torbert et al., 1996). The same transfer or waiver criterion appliesfor blended sentencing. There are a few different forms of blended sentencing that differ mainly on whether the juvenile court or adult court retains jurisdiction and responsibility for adjudicating the case (Lawrence and Hemmens, 2008, pg. 345). The most common form of blended sentencing is known as Extended Juvenile Jurisdiction (EJJ) or sometime referred to as ???inclusive??? blended sentencing. These types of proceedings are commonly used for serious, violent, or chronic offenders who would meet the criteria for transfer to criminal court. Similar to other transfer provisions, a hearing takes place to determine the appropriateness for transfer. When an EJJ decision is handed downit is combined or ???blended???. The youth is given both a juvenile disposition and an adult sentence, but the adult sanction is stayed or suspended and the juvenile disposition is implemented (Lawrence and Hemmens, 2008, pg. 345).Once the juvenile disposition is set in motion under EJJ provisions, the juvenile must meet the terms of the juvenile court disposition. If the juvenile fulfills the requirements of their disposition, then the adult sentence will be dismissed completely. On the other hand, if the juvenile violates the terms of the disposition (through a new offense or a violation of probation or institutional rules), the adult sentence is then imposed following a hearing to document the failure (Sanborn & Salerno, 2005).
A small-scale study (Redding and Fuller, 2004) was done, 37 juveniles who had committed serious crimes and had been automatically transferred to be tried as an adult in the state of Georgia were interviewed. The study examined their knowledge and perceptions of transfer laws and criminal sanctions (Redding, 2008, pg. 3). To note, Georgia had publicly announced and made it known to juveniles about the states newautomatic transfer law. Of the juveniles interviewed, 8 of the 37 juveniles knew that those youths who committed serious crimes could be tried as an adult. Of the juvenile offenders transferred who knew about the new law, none of them thought that it would be enforcedupon them for the serious crime they had committed. Most of 37 interviewed thought that they would receive juvenile dispositions from the juvenile court (Redding, 2008, pg. 3).
In the same study of 37 transferred juveniles interviewed by Redding and Fuller(2004), seventy-five percent felt that their experiences in the adult criminal justice system had taught them the serious consequences of committing crimes, as well as if they had known they could have been sentenced as adults, they may not have committed the crime (Redding, 2008, pg. 3).
Redding claims that the limited empirical research on the general deterrent effect of juvenile transfer is somewhat inconsistent and does not permit a strong conclusion and that the evidence suggests that there is little or no general deterrent effect in preventing serious juvenile crime (Redding, 2008, pg. 3).
As a result of growing concern throughout the country about the increase in violent crime committed by juveniles, all 50 states and the District of Columbia passed some form of legislation to try juveniles in criminal court as a part of a nationwide attempt to become tougher on juvenile crime. As a result of groundbreaking decisions in U.S. Supreme Court cases such as Kent_ v. United States _and Breed v. Jones juveniles facing criminal charge were afforded many of the same due process rights as accused adult would receive. Those rights along with an increasing juvenile crime rate motivated states to create laws that would allow juvenilesaccused of crimes to be transferred to the adult system. Legislation such as judicial waivers, blended sentencing, prosecutory direct file, exclusion, reverse waiver, and ???once an adult, always an adult??? paved the way for juveniles to be held culpable for their actions. Even though it has been noted that juveniles have a lower maturity level, an under developed brain which affects their judgment, lower level of education, and less knowledge of the law and it sanctions; it hasn??™t stopped legislators from enacting provisions that incarcerate youthwith more volatile criminals in the adult facilities.
While there is use for many of the transfer laws that are in place, laws like direct filing and statutory exclusion negate the importance of a hearing to determine if atransfer is necessary. The important rulings in the Supreme Court cases of the 60??™s and 70??™s established the rights of due process for juveniles and as exclusionary waiver and prosecutorial direct filing bypass that important step of fact finding. If it were possible, I would like those specific provisions to be removed because there are plenty of other avenues to have a serious juvenile offenders tried as an adult.
Even though there are mixed reviews about our states blended sentencing program, I feel it is a solid way to keep some juveniles from becoming a repeat offenders. By dangling a severe sanction over the offenders head, along with a juvenile disposition, I believe it provides a deterrent from future offenses.
The more we start to criminalize our youth as adults; the less they will be viewed as children, juveniles, or young. What is the point of having a juvenile system if we are treating them more and more likeadults Unless a juvenile commits thee most serious of crimes they should remain in the juvenile justice system to be treated and rehabilitated.
Breed v. Jones. (1975). 421 U.S. 519.
Feld, B. C. (2000). Legislative exclusion of offenses from juvenile court jurisdiction: A history and critique. In F. Fagen & F. E. Zimring (Eds.), The changing borders of juvenile justice: Transfer of adolescents to the criminal court (pp. 83-144). Chicago, IL: University of Chicago Press.
Feld, B. C. (2004). Editorial Introduction: Juvenile transfer. Criminology & Public Policy, 4(3), 599-603
Griffin, P., Torbert, P., & Szymanski, L. (1998). Trying juveniles as adults in criminal courts: An analysis of state transfer provisions. Washington, DC: U.S. Department of Justice, Office of Juvenile and Delinquency Prevention.
Hansen, B. (2001, April 27). Kids in prison. The CQ Researcher, 27, 345-376. Accessed online 3/28/09. CQ Researcher.
Kent v. United States. (1966). 383 U.S. 541.
Kooy, E. (2001). The status of automatic transfers to adult court in Cook County, Illinois: October 1999 to September 2000. Chicago, IL: Juvenile Transfer Advocacy Unit.
Lawrence, R., Hemmens, C. (2008). Juvenile Justice. Thousand Oaks, CA: Sage Publications, Inc.
Mole, D., White, D. (2005). Transfer and Waiver in the Juvenile Justice System. Washington, DC: Child Welfare League of America, National Center for Program Standard and Development, Juvenile Justice Division.
Redding, R. E., and Fuller, E. J. (2004). What do juvenile offenders know about being tried as adults: Implications for deterrence. Juvenile and Family Court Journal 35-45.
Redding, R. E. (2008). Juvenile transfer laws:_ An effective deterrent to delinquency: _Washington, DC: U.S. Department of Justice, Office of Juvenile and Delinquency Prevention.
Sanborn, J. B., Jr., & Salerno, A. W. (2005). The Juvenile Justice System: Law and Process. Los Angeles: Roxbury.
Torbert, P., Gable, R., Hurst, H., Montgomery, I., Syzmanski, L., & Thomas, D. (1996). State Reponses to Serious and Violent Juvenile Crime: Research report. Washington, DC: U.S. Department of Justice, Office of Juvenile and Delinquency Prevention.
Zimring, F.E. (2005). American Juvenile Justice. New York: Oxford University Press.