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Margaret Barbera Juvenile Justice Professor Herring May 3, 2010 Juvenile Transfer The rise of violent juvenile crime in the recent past has called for a more punitive response by the criminal justice system. For example, it is no longer even discussed whether certain juveniles will be prosecuted in the adult system, because automatic forms of juvenile transfer have increased during the current “get tough” phase. This approach toward the adjudication of juveniles is used to address serious or chronic adolescents (Sellers, 2009).
Unfortunately, relying on automatic waivers has caused a number of processing, correctional and recidivism issues. However, perhaps the largest concern is that juveniles are not developmentally or emotionally capable of being processed and treated as an adult. Investigators have shown how developmental immaturity negatively affects a waived juvenile’s ability to be deemed ‘fit for trial’ in the adult legal system (Sellers, 2009). Nearly 200,000 juveniles are tried as adults each year, and approximately 12% of these adolescents are younger than sixteen (Sellers, 2009).
The legal ability to adjudicate youths in the criminal justice system is the waiver process; three waiver forms exist. The judicial waiver allows the judge to review the evidence regarding the youth’s willingness to participate in treatment and his potential threat to society. Usually, this decision is made using the seriousness of the offense and the individual’s criminal history as major factors. The legislative offense exclusion, or statutory waiver, allows legislatures to create laws and policies regarding the juvenile justice system.
This approach is the simplest way to emphasize the seriousness of the crime and to promote a retributive focus (Sellers, 2009). The last strategy is the prosecutorial waiver, or “direct file. ” Using this approach, the prosecutor is granted the discretion to choose whether a youth is charged in criminal or juvenile court. Judicial waivers allow for a hearing to determine the adolescent’s maturity level, amenability to treatment and potential danger to society.
However, statutory and prosecutorial waivers do no evaluate these factors; a mandatory waiver requires only that there is probable cause to prosecute. New statutory waiver laws enacted in 1994 increased the number of juveniles automatically transferred to criminal by 73% (Sellers, 2009). This is problematic to say the least, because statutory exclusion laws force juveniles into the adult system, exposing them to adult criminal adjudication and punishment without ever evaluating whether the child is capable of fully participating in their proceedings.
Characteristics such as psychological maturity, social influences and prior record are all important factors in criminality, and should be considered when deciding how to punish, deter or rehabilitate juveniles (Sellers, 2009). Furthermore, automatic transfers ensure adjudication will rely solely on the offense rather than the offender, effectively eliminating discretion. While it may sound comforting to hear that discretion is reduced, it is actually very dangerous to remove power from the judges and lawyers: laws are written vaguely so that they may be interpreted to fit almost every situation.
If discretion is removed, all individuals are treated equally severely. This means that in the eyes of the law, a six year old who hits a friend while roughhousing on the baseball field will receive the same sentence as a teen that violently attacks a rival with a bat. Obviously, it is necessary to consider the circumstances before sentencing. The use of automatic transfer waivers is based on the rationale that harsher sanctions will serve as a deterrent for future juvenile crime. Unfortunately, statutory exclusion laws and direct-file statures have been found to provide no significant or lasting deterrent for juvenile crime (Sellers, 2009).
In fact, New York recidivism statistics show that more than 60% of juveniles who were transferred to the adult system reoffend within thirty-six months; a study of 800 adolescent offenders charged with robbery revealed that the juvenile court experienced a recidivism rate nearly 20% lower than those waived to the criminal justice system (Sellers, 2009). When addressing the question of why so many juveniles are transferred to the adult system, we must look at the public’s attitude toward juvenile crime.
Issues such as deterrence, retribution and public safety are so compelling to the general public that the courts are more inclined to ‘get tough,’ and less inclined to preserve the distinction between the juvenile and criminal justice systems (Sellers, 200). This completely conflicts with the original purpose of the juvenile system, and essentially transformed it into a court for smaller people. Rather than recreate the rehabilitative nature of the system, society is abusing and wasting the resources available to treat these adolescents.
Especially worrying is the fact that these resources are critical in rehabilitating youths, and juveniles who are transferred to the adult system are being denied access to these treatments. Youths face punishment as an adult without consideration for possible developmental immaturity or immature cognitive functioning, and then are denied the time and resources available to them so that they may receive harsher sanctions. Evidence indicates that developmental immaturity also causes impulsivity, reliance on peer acceptance, a lack of autonomy, and poor judgment regarding future consequences (Sellers, 2009).
Not only are these other characteristics extremely important in evaluating the crimes committed, but they also pose serious questions about whether the youth can truly be considered an adult. The juvenile justice system was created in order to protect juveniles from serious punishment and labels because it was recognized that individuals who exhibit such immature behavior and logic were not ready to take on the responsibilities of being an adult; while a few teens may be as mature as adults, the majority are still incapable of independence and dependability.
Therefore, it is questionable whether these juveniles should be transferred to the adult system at all, but in the event that they are waived to the adult system, it is essential that they be evaluated to determine their competency. The psychosocial factors associated with developmental immaturity affect juveniles’ reasoning processes and cognitive function, and these impairments are especially obvious during trial. For example, adolescents are incapable of fully understanding long-term consequences, and therefore engage in decision-making that displays the lack of independent and cautious easoning. The failure to anticipate negative consequences leads to highly impulsive behavior and risky decisions. With respect to autonomy, Corriero stated that the diminished criminal responsibility of offending juveniles is “explained in part by the prevailing circumstances [in which they] have less control, or less experience with control, over their own environment” (Sellers, 2009, p 447). While the effects of developmental immaturity are clearly contributing to the criminality of youths, the courts must decide whether this evidence is significant enough to alter the adjudication of juveniles.
First, it must be determined whether this data is significant enough to change our juvenile justice system into a more forgiving and rehabilitative system: this would allow for the youths to be treated and taught rather than incapacitated during the last years of development. In the event that the juvenile is waived to the adult system, it must be determined whether developmental immaturity is a sufficient factor when making determinations about a juvenile offender’s mental fitness for trial.
Most courts require that the defendant be diagnosed as suffering from a psychiatric illness or mental retardation to be considered incompetent (Sellers, 2009). Studies indicate that nearly one third of juveniles between eleven and thirteen years old, and one-fifth of juvenile between fourteen and fifteen years of age, lack the requisite competence to stand trial (Sellers, 2009, p 448). The results also reveal that juvenile immaturity affects behavior and decision-making regarding “future orientation and risk perception during the legal proceedings” (Sellers, 2009).
When judgment is impaired or when maturity is dependent on insufficient development, the youth’s ability to competently function in adult criminal proceedings is compromised (Sellers, 2009). Furthermore, it is society’s belief that the transfer of a few juveniles, and the publication their more severe punishments will be a deterrent for youths. However, as previously mentioned, youths are not fully capable of understanding and properly anticipating the consequences of their actions.
Therefore, because of their undeveloped cognitive functions, juveniles cannot adequately appreciate the deterrence effect of those transferred. Once juveniles have entered the adult system, they are subjected to potential abuse and incarceration. The adult court’s mission is to assign blame and determine guilt; this is in conflict with the “child savers'” original intention regarding the adjudication of juveniles. The juvenile justice system was created with the belief that adolescents were relatively blameless and that the causes of youth crime were a disorganized society and inadequate parenting (Applegate, 2009).
Until recently, “the juvenile justice system sought to divert youths from the adult court and meet the needs of troubled juveniles” (Applegate, 2009). In the 1960s, crime rose and so did claims that the juvenile justice system was too soft on youth crime. As a result, more juveniles were moved into the adult system. By 1978, 31 states had excluded certain offenses from juvenile court jurisdiction (Applegate, 2009). Zimring found that although is it common practice to judge juveniles as an adult, there are two aspects of immaturity that provide a foundation for specialized handling of juveniles.
Youths are not fully developed in terms of their social, emotional and cognitive capabilities and therefore, their liability for any criminality is diminished (Applegate, 2009). Secondly, juveniles need “room to reform” (Applegate, 2009, p. 53); they need time to make mistakes and experience decision-making without compromising their whole future. Although older teens are perhaps just months away from legal adulthood, science suggests that adolescents’ judgment is less mature than adults, they are less future oriented and more impulsive (Applegate, 2009).
There is no evidence that juveniles transferred to adult courts suffer more than their adult counterparts in the areas of bail or pretrial detention. However, juveniles are less likely to make bail, therefore the likelihood that they will experience pretrial detention is much greater for adolescents. As a result, these juveniles are perceived as more dangerous or incapable of rehabilitation by their mere presence in detention. “Transferred juveniles were more likely to be sentenced to prison than the adult defendants,” though their crimes may be similar.
This information suggests that the transfer itself may increase the suspicion that the juvenile is dangerous, and may lead the sentencers to be more punitive (Steiner, 2009). Unfortunately, transferring juveniles to the adult system will not fix these issues, nor will it cause the brain to develop more quickly. Instead, the practice will allow for juveniles to associate with and be influenced by adults who have deliberately chosen to break the law despite their fully developed judgment skills.
This influence leads juveniles to believe that crime can be a lifelong profession. A prospective cohort study compared the re-arrest of 400 youths (ages 15 and 16) arrested in New York City (where the adult court has jurisdiction of 16 year olds, and 15 year olds are excluded from juvenile courts for any of fifteen different felonies) with the re-arrest of 400 similar youths in New Jersey (where there are no legislative exclusions and all juveniles under the age of 18 are within the jurisdiction of the juvenile justice system (CDC, 2007).
The study showed that “among those incarcerated, exposure to longer sentences was associated with a further increase in violent recidivism among those transferred compared with those who were retained in the juvenile system” (CDC, 2007). Another study was done in Florida in which youths transferred to adult courts were compared to those who remained in the juvenile justice system: findings indicated that the transfer increased recidivism for a short period of time.
In the long run, recidivism for some decreased, while for some it increased (CDC, 2007). In a third study, results showed that transferred youth had 34% more felony re-arrests than retained youth (CDC, 2007). Clearly, the practice of transferring juveniles to the criminal justice system does not work as a deterrent. In fact, investigators have found that transferred juveniles become more involved with crime after the system ‘got tough’ on them.
Juvenile transfers are both helpful and harmful to society. Because the juvenile justice system is unable to impose harsh sanctions on its most serious and dangerous offenders, it is necessary to have the option of transfer available. However, with new laws intending to treat children as small adults, more and more juveniles charged with misdemeanors are being moved to the criminal justice system.
The studies in Florida indicate that a growing number of juveniles were transferred to adult court for misdemeanors and found greater harm ??? like recidivism ??? than those who were transferred for more serious crimes (CDC, 2007) The juveniles adjudicated for the more serious crimes are probably less likely to reoffend during the time of the study because they are incarcerated, whereas those convicted of less serious crimes are released after spending years with professional criminals.
The task force on Community Preventative Services reported the findings “indicate that transfer policies have generally resulted in increased arrest for subsequent crimes, including violent crime, among juveniles who were transferred compared to those retained in the juvenile justice system. To the extent that transfer policies are implemented to reduce violent or other criminal behavior, available evidence indicated that they do more harm than good” (CDC, 2007).
Those who are transferred are less likely to have rehabilitative programs available and are more likely to be victimized (Drowns, 2010). Essentially, the experience of transfer to the criminal justice system is associated with subsequent violence, and very little evidence supports the philosophy that transfer laws deter juveniles. Some studies have examined the negative effects of transfer on the maturation process of juveniles during adolescence, and can interfere with their abilities to accomplish developmental steps (Drowns, 2010).
When incarcerated, youths are damaged by the interruption with the social bonding, relationship structures, and stability necessary for the offender to grow into a law-abiding citizen. This prevents individuals from functioning as a productive member of society after release. Incarceration during this time coupled with a lack of assistance programs is a recipe for failure. By transferring juveniles into the criminal justice system, we are providing them with no vocational or educational training, except that of crime.
As Drowns and Hess write, “the most enduring education a juvenile will likely receive while incarcerated in the adult system is how to become a better criminal” (p. 327). Instead of further expanding transfers, all but the most serious and violent offenders should remain in the juvenile justice system; the system was created and designed to address the special needs of adolescents who offend. The adult criminal justice system is concerned with assigning blame, not rehabilitating or aiding those who violate the law.
The American juvenile justice system must be responsible for all the adolescents within its jurisdiction, meaning that offenders who are charged with misdemeanors should never be transferred to the adult courts. . There is no doubt that some juveniles need to be treated as adults and transferred to the criminal courts. Generally though, the youth of America is an important group deserving special services and guidance rather than punishment and imprisonment References Applegate, Brandon. , Davis, Robert. , and Cullen, Francis. (2009).
Reconsidering Child Saving: The Extent and Correlates of Public Support for Excluding Youths From the Juvenile Court Crime Delinquency, January 2009; 55: 51 – 77. Drowns, R. W. , & Hess, K. M. (2008). Juvenile Justice (5 ed. ). Belmont, CA: Wadsworth Publishing. Effects on Violence of Laws and Policies Facilitating the Transfer of Youth from the Juvenile to the Adult Justice System A Report on Recommendations of the Task Force on Community Preventive Services*. Centers for Disease Control and Prevention. Retrieved May 3, 2010, from http://www. dc. gov/mmwr/preview/mmwrhtml/rr5609a1. htm . Sellers, B. , & Arrigo, B. (2009). Adolescent Transfer, Developmental Maturity, and Adjudicative Competence: An Ethical and Justice Policy Inquiry. Journal of Criminal Law & Criminology, 99(2), 435-487. Retrieved from Academic Search Elite database. Steiner, B. (2009). NCJRS Abstract – National Criminal Justice Reference Service. National Criminal Justice Reference Service. Retrieved May 3, 2010, from http://www. ncjrs. gov/App/Publications/abstract. aspx? ID=248463