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Journal Issue: The Juvenile Court Volume 6 Number 3 Winter 1996

The Court's Effectiveness in Protecting the Rights of Juveniles in Delinquency Cases
Janet E. Ainsworth

Transfer of Juveniles to the Adult Criminal Justice System

From its inception, the juvenile court system recognized that some incorrigible juvenile offenders might not respond to the rehabilitative dispositions utilized by the juvenile court. Juvenile court judges have generally had the discretionary power to waive27 juvenile court jurisdiction over such cases, thereby transferring them to the adult criminal court system.28 This practice, seldom used in the past,29 has increased dramatically in the past two decades.30

Once reserved for the "worst" juveniles—those with lengthy records charged with the most serious offenses—waiver is being used more and more frequently to transfer juveniles who are accused of committing lesser offenses or who have little or no prior record. Numerous studies show that property offenders outnumber violent offenders among juveniles transferred into the adult system.31 Furthermore, as many as 25% of waived juveniles are first-time offenders.32

In addition to discretionary judicial waivers, some jurisdictions now allow for prosecutorial waivers in which the prosecutors themselves have the power to send certain youths directly to adult court without a judicial hearing on the issue.33 The decision to exercise this option is unreviewable and final.34 In contrast, a judicial waiver in which the judge decides to waive juvenile court jurisdiction can, at least in theory, be appealed. As a practical matter, however, the judge's ruling is final, since an appeal can seldom be heard before the offender "ages out" of the juvenile court system.

In recent years, many jurisdictions have passed mandatory waiver statutes that require the automatic transfer of certain juveniles into the adult system.35 Typically, these mandatory legislative waivers apply to youths charged with serious or violent felonies. In some states, these waivers automatically transfer accused juveniles over a certain age to adult court.

One of the reasons for enacting mandatory waiver provisions was a belief that certain juveniles felt free to commit serious offenses in the knowledge that they would face only the relatively lenient sanctions of the juvenile court. Automatic waiver for serious offenses, it was hoped, would deter such offenders from committing the crimes in the first place. However, in the late 1980s, the first major empirical studies to test this proposition found no change in the rate of serious juvenile offending in the years following the adoption of automatic waiver statutes. This finding suggests that the prosecution of juveniles as adults has little if any deterrent effect on criminal behavior.36

Waiver procedures mandated by statutes have greatly contributed to the escalation in the rate of juvenile transfers. For example, the number of juveniles tried as adults in Cook County, Illinois, more than tripled after Illinois enacted an automatic transfer provision for certain serious offenses.37 The number of juveniles transferred as a result of mandatory waiver statutes is likely to continue to increase. Political pressure to get tough on crime—often triggered by a highly publicized criminal act or episode—tends to encourage legislators to expand the list of crimes subject to mandatory waiver.38

Although the increasing waiver of juveniles into the adult criminal justice system is premised on a desire to get tough with young offenders, it is not clear whether juveniles tried as adults do, in fact, receive more severe sanctions than they would have if retained in the juvenile system. Several studies have determined that juveniles sentenced as adults receive lesser sentences than actual adult offenders with comparable records and offenses.39 Some researchers have even concluded that offenders waived into the adult system not infrequently receive lighter sanctions than they would have received had they remained in juvenile court.40 One explanation for this surprising finding is that, because a growing proportion of transferred juveniles are property offenders, they are the kind of offenders who typically get probationary or short jail sentences in adult court. For example, one 1989 study found that the percentage of transferred juveniles receiving probation as the sanction in adult court rose from 40% in 1980 to 62% in 1988 as a result of the increasing number of transferred juvenile property offenders.41 In addition, conviction is more difficult in adult court, so that a greater proportion of cases transferred to adult court are dismissed or end in acquittals.42 (For more information about waivers, see the articles by Snyder and by Greenwood in this journal issue.)