Charles J. Aron has been a sole practitioner in Chicago, IL. for 26 years. He is a Co-Chair of the NACDL Juvenile Justice Committee and a member of The Champion Advisory Board.
Michele S.C. Hurley is a 1997 graduate of The John Marshall Law School. She currently works for the City of Chicago Board of Education.
Juvenile crime is an increasingly serious problem. Of the 641,250 people arrested for violent crimes in the United States in 1992, 112,409 (17.5 percent) were juveniles. During the last decade, the number of juveniles committing murder, rape, robbery and assault has increased by a whopping 93 percent.1
The juvenile justice system is at the heart of a controversy. In light of the disturbing statistics, stories of juvenile crime have soared. The media is placing more emphasis on juvenile offenders who commit violent crimes -- more and more graphic pictures "at six and eleven." The debate centers on America's response to those crimes, and the adequacy and effectiveness of the established juvenile justice system.
Political demagoguery increases in proportion to the juvenile violent crime rate. Increasingly, America's youth are labeled as "parasitic," "animalistic," "depraved," "super predators." They are viewed by society as less innocent and more violent; they are seen as capable of discerning right from wrong, yet more willing to choose wrong over right. In fact, the 105th Congress predicted in the Omnibus Crime Control Act of 1997, "the number of juvenile offenders is expected to undergo a massive increase during the first two decades of the twenty-first century, culminating in an unprecedented number of violent offenders who are less than 18 years of age. . . ."2
The legal emphasis has shifted from protecting and reforming children to "protecting" society from young people prematurely deemed incapable of rehabilitation. Fueled by public frustration and fear, and heightened calls by the ratings-hungry media and publicity-seeking politicians, the situation is not going away any time soon.
Critics charge that the juvenile justice system rewards many offenders with undue leniency, merely because of the "tenderness" of their age. The critics say that young children who commit violent crimes such as assault, rape, murder and armed robbery are often adjudicated in the same courts as youthful, non-violent offenders who commit such offenses as shoplifting, burglary, petty theft and drug offenses. Their argument is that because violent juvenile offenders are not separated and categorized according to the severity of the crime, they subsequently receive sentences incongruent with the crimes they committed.
The question continually raised is whether the juvenile justice system should be abandoned in favor of transferring juvenile offenders to adult courts and prisons and, perhaps, even death row. The growing disillusionment with the perceived therapeutic and ineffective approach of the juvenile justice system has resulted in appeals for a modification of state -- and now federal -- transfer methods.3 As the system becomes the subject of increasing attacks by state legislatures, national policy makers, the media and the general public, many jurisdictions have made it easier to prosecute juvenile offenders in adult criminal courts.4
The states' modification of their respective transfer methods has resulted in the distribution of responsibility for deciding when to waive juvenile court jurisdiction and transfer juvenile offenders to adult criminal courts variously among judges, legislatures and prosecutors.5 This shift in the grant of authority to make waiver determinations -- previously reserved exclusively to juvenile court judges -- is consistent with much of society's desire to focus solely on punishment as opposed to rehabilitation. Furthermore, this shift in responsibility is consistent with the prominent belief that juvenile court judges are incapable of adequately determining when juvenile offenders are not amenable to rehabilitation and should, therefore, be waived to adult criminal courts.
The widely adopted and shared philosophy in American society today, that "they did the crime, so they should do the time," has not proven remedial in nature. The astronomical increase in the number of juveniles transferred to adult courts has resulted in harsher punishments; it has also failed to lower the recidivism rate once those convicted juveniles are released, and it has failed to deter violent behavior in the first place.6
As society becomes more punitive in response to rising crime rates, it fails to recognize and acknowledge that juvenile offenders are children. They are children often confronted by family and socioeconomic problems and personal trauma which negatively influence their behavior, often resulting in heinous acts. Many juvenile offenders live lives more problematic and horrific than most adults can imagine. Such backgrounds call for rehabilitation, not punishment; opportunity, not ostracism. They are, after all, children.
Historical Analysis
The juvenile justice system was instituted almost a century ago with the 1899 founding of the first juvenile court in Cook County, Illinois.7 The juvenile court system was founded on the doctrine of parens patriae. This doctrine has been interpreted as the intrinsic authority and responsibility of the state to ensure and provide protection for children whose natural parents proved unwilling, or otherwise, incapable of providing appropriate parental care and supervision. Succinctly, the underlying philosophy of the juvenile court system was:The child who has gone wrong, who is incorrigible, who has broken a law or ordinance, is to be taken in hand by the state, not as an enemy, but as a protector, as the ultimate guardian, because of either the unwillingness or inability of the natural parents to guide the child toward good citizenship has compelled the intervention of the public authorities.8
The establishment of the juvenile justice system thus inaugurated the goal of rehabilitating and reintegrating juvenile offenders into mainstream society. It was a widely held belief that such goals were best for both the child and society. The rehabilitative approach was accomplished by examining the problems affecting individual offenders and using the information ascertained to structure a program of rehabilitation geared toward resolving "the wayward juvenile's family, social and personal problems and to prepare them to be healthy, productive and law abiding adults."9
As late as 1974, the Juvenile Justice and Delinquency Prevention Act sought to encourage the development of community-based alternatives to juvenile detention. The thought was that by focusing primarily on rehabilitative treatment in a non-adversarial, decriminalized process, juvenile offenders would be protected, cared for and educated.10 Furthermore, such rehabilitative treatment was believed to be the answer to ensure that those children would be adequately prepared for re-entry into society. Additionally, "individualized justice" in the form of rehabilitation, was believed to be both in the "best interest" of the juvenile offender and a valuable deterrent from the commission of future offenses.
To this point, Royce S. Buckingham in The Erosion of Juvenile Court Judge Discretion in the Transfer Decision Nationwide, wrote, "without a program of individual treatment the result may be that the juvenile will not be rehabilitated, but warehoused, and that at the termination of detention he will likely be incapable of taking his proper place in free society."11
Children in Adult Courts
Before 1899, juvenile offenders were punished for their offenses in the adult criminal court system. Furthermore, they were sentenced to adult penal institutions and housed with adult criminals.12 As a result, juries were often hesitant to convict juveniles because they feared the negative effect such sentencing and incarceration would have once the juvenile offenders were returned to society. They believed those juveniles would, subsequently, be incapable of taking their proper places in society.Today, the shift in attention from the offender to the offense -- the calls for a redistribution of waiver responsibilities among judges, legislatures and prosecutors -- while akin to the pre-1899 system, is for far different reasons. Prior to the establishment of the juvenile justice system, juvenile offenders were treated as adult offenders because that was the only arena available for adjudicating their offenses. Presently, the call for juvenile offenders to be treated as adult offenders is because society believes this is the only forum capable of meting out punishment harsh enough to address the severity of the crimes committed. Additionally, critics of the juvenile court system believe that the nonadversarial, decriminalized process is violative of the victims' right to confront the offenders. Further, these critics allege that in the absence of public scrutiny, juvenile offenders are permitted to avoid accountability for their actions.13
There is an important distinction to be made between children who err and commit an isolated criminal offense and criminals who happen to be children. The juvenile justice system has always realized that some juveniles may be beyond its reach and not amenable to the rehabilitative services it seeks to provide. Thus, the transfer mechanism arose as a route through which the juvenile court could relieve itself of those serious juvenile offenders not amenable to their rehabilitative treatment services.14 For those instances where the punishment needed to be more substantial than the juvenile justice system could mete out, the procedure of transferring jurisdiction from juvenile to adult courts has existed since the establishment of the juvenile court system.15
Nonetheless, recent modifications in state transfer methods have resulted in insurgent changes from the days when juvenile court judges possessed exclusive authority over determining when to exercise the power of waiving juvenile court jurisdiction.
Modification of State Transfer Methods
Conventionally, exclusive authority or discretion in determining when and whether juvenile offenders should be waived to adult criminal systems was vested in juvenile court judges.16 This practice was an effort to shield juveniles from publicity, protect against extended pre-trial detention and post-conviction incarceration, as well as guarantee that confinement would not extend beyond the age of majority; judicial waiver operated on the premise that transfer should be used in "exceptional cases only."17Such transfer proceedings empower juvenile court judges to determine the amenability of individual juvenile offenders, sending only those unamenable to rehabilitation to adult courts.18 To date, every state has adopted one or more statutory strategies or methods to expedite the transfer of juveniles to adult criminal courts. There are three ways in which juveniles may be waived into adult courts:
1. Judicial Waiver of juvenile court jurisdiction exists where juvenile court judges use their discretionary authority to forward juvenile cases to adult courts.
2. Legislative Waiver or exclusion of specific offenses from jurisdiction in juvenile court exists where laws are adopted by a jurisdiction which specify that being charged with the commission of certain serious and violent offenses results in an automatic transfer, or a transfer to adult court will occur when a juvenile's background and current offense reflect a failure to desist from criminal activity despite previous contacts with the juvenile justice system.
3. Prosecutorial Waiver or choice of forum exists where prosecutors have an option of filing charges in either juvenile or adult court in deciding whether a youth is a criminal or a delinquent.
During the period from 1988 to 1992, the percentage of cases transferred to adult criminal court increased by 68 percent.19 This increase is most appropriately attributable to the adoption of the legislative and prosecutorial waiver mechanisms as alternatives to the long existing mechanism of judicial waiver.
Judicial waiver is, perhaps, the oldest and most common waiver mechanism.20 It is a mechanism by which a juvenile court judge may exercise independent discretion in determining whether to transfer a particular juvenile offender to adult criminal court jurisdiction.
Upon a motion of the prosecution, of the juvenile, or of his or her own initiative, the juvenile court judge must conduct a waiver hearing to establish whether waiver of juvenile court jurisdiction is appropriate. This waiver mechanism is to be employed on a discretionary basis after a hearing to determine whether the juvenile offender is "amenable to treatment" or, instead, poses a threat to domestic security. It further allows the juvenile court judge to be the primary, if not the ultimate decision maker, in the transfer process, thereby minimizing the likelihood of undue bias or overzealous prosecution.
Most judicial transfer statutes include a "laundry list" of the criteria that a juvenile court judge is entitled to, or should, consider in making the transfer determination.21 Two primary factors to be considered are the dangerousness of the juvenile offender and the amenability of the juvenile to rehabilitative treatment.22 For example, Section 405/5-4(3)(a) of the Illinois Compiled Statutes provides:
If a petition alleges commission by a minor 13 years of age or over of an act that constitutes a crime under the laws of this State and, on motion of the State's Attorney, a Juvenile Judge ... after investigation and hearing but before commencement of the adjudicatory hearing, finds that it is not in the best interests of the minor or of the public to proceed under this Act, the court may enter an order permitting prosecution under the criminal laws.
This process focuses on the individual and involves transferring a juvenile to adult criminal court only on a discretionary basis following a hearing to determine the juvenile's amenability to treatment or the threat he or she may pose to public safety.23
During the hearing, both sides present evidence regarding a juvenile's personal circumstances and prior offenses, if any. The information and evidence presented is balanced by the judge, who weighs the juvenile's potential amenability to rehabilitative treatment in the juvenile justice system against the danger that he or she poses to the community. If the judge finds that the juvenile is not amenable to treatment, the case may be transferred to adult criminal court. If, however, based upon the evidence presented, the judge makes a determination that the juvenile offender would be amenable to rehabilitation, then the juvenile court system may retain jurisdiction. Section 405/5-4(3.3)(b) is an example of the laundry list of considerations upon which the evaluation can be made:
i. The circumstances and gravity of the offense alleged to have been committed by the minor.
ii. The age of the minor.
iii. The degree of criminal sophistication exhibited by the minor.
iv. Whether there is a reasonable likelihood that the minor can be rehabilitated before the expiration of the juvenile court's jurisdiction.
v. The minor's previous history of delinquency.
vi. Whether the offense was committed in an aggressive, premeditated or calculated manner.
vii. Whether there are sufficient facilities available to the juvenile court for the treatment and rehabilitation of the minor.
The discretion exercised by the juvenile court judge is neither arbitrary nor capricious. Instead, it is the sum result of an intensive, full and fair evaluation of the individual offender. The judicial waiver mechanism is quite different from the legislative and prosecutorial waiver mechanisms. The main difference is that it is approached and utilized on a case-by-case basis. Unlike the others, it examines and considers those issues specific to the individual offender before the bar at that particular time.
Legislative Waiver (also known as statutory exclusion) unconditionally excludes from juvenile court jurisdiction certain juveniles or certain offenses.24 These cases must be adjudicated in adult criminal courts. Usually, the legislative waiver mechanism focuses on juveniles who have committed capital, or otherwise violent offenses. In this instance and under this mechanism, waiver is not discretionary. It is based solely on statutory criteria.
Waiver is automatic and the juvenile is subject to adult criminal court jurisdiction from the moment of being charged -- no hearing takes place to determine whether the interests of the juvenile and of society will be best served by criminal prosecution. This mechanism systematically places juveniles in the adult criminal court system regardless of any independent circumstances which might be indicative of an individual's amenability to the rehabilitative treatment available in the juvenile justice system. Thus, under legislative waiver, there is a presumption that juvenile courts cannot sufficiently penalize juvenile offenders it presumes are inherently dangerous.25 It further presumes that juvenile court judges do not possess the capacity to distinguish those instances where it would be necessary to transfer violent offenders to adult criminal court for the purpose of imposing a more severe punishment.
1994 Violent Crime Control and Law Enforcement Act
One widely publicized and hotly debated form of legislative or statutory exclusion is the 1994 Violent Crime Control and Law Enforcement Act ("Crime Bill"). In August 1994, Congress passed the Crime Bill containing two primary provisions aimed at cracking down on juvenile offenders. These provisions specifically provide for adult prosecution of juveniles, thereby allowing them to be tried as adults for all violent crimes which fall under federal jurisdiction and for crimes involving firearms or drug trafficking.26The provisions do not, however, automatically transfer the juvenile for adult prosecution. For transfer to occur, the court must apply the balancing factors set forth in Section 5032 of Title 18 of the United States Code. Thereafter, the court must make a factual determination of the applicability or existence of each factor. Among the factors are:
i. the age and social background of the juvenile;
ii. the nature of the offense committed;
iii. the extent and nature of the juvenile's criminal or delinquency record;
iv. the juvenile's intellectual development and psychological maturity;
v. the nature of past treatment efforts and the juvenile's response to such efforts; and
vi. the availability of programs designed to treat the juvenile's behavioral problems.
The first provision, Title XIV "Youth Violence" provides for juveniles as young as 13 to be tried as adults for such violent crimes as rape, robbery and murder. Transfer to adult court may be authorized if a juvenile possesses a firearm during the commission of these crimes.27 Similarly, the second provision, Title XV "Criminal Street Gangs" provides for adult prosecution of serious juvenile offenders who are members of criminal street gangs. Title XV provides, in pertinent part:
In considering the nature of the offense, as required by this paragraph, the court shall consider the extent to which the juvenile played a leadership role in an organization, or otherwise influenced other persons to take part in criminal activities, involving the use or distribution of controlled substances or firearms. Such a factor, if found to exist, shall weigh in favor of a transfer to adult status, but the absence of this factor shall not preclude such a transfer.28
Under the legislative waiver mechanism, there is no option for an arbitrary exercise of discretion. Although this may, at first, seem a positive aspect of this waiver process, the legislative waiver mechanism also has the potential to be quite damaging, because there is no opportunity for a waiver hearing or consideration of whether a juvenile is amenable to rehabilitation in juvenile court. Therefore, the characteristics of an individual offender which might lend invaluable insight into his rehabilitative prospects under the juvenile justice system are not taken into consideration.
Because the offense rather than the offender is considered, those children who err on the side of committing a juvenile offense are often unduly grouped with both adult criminals and those criminals who happen to be children. Although many of the children who "err" require only more structured guidance to steer them in the right direction, they become prey for those who would steer them in the wrong direction. Furthermore, because they are unfairly categorized, many of these young people subsequently acquiesce to the environment in which they are placed and develop the mindset and behavior characteristics of criminals.
Violent and Repeat Juvenile Offender Act of 1997
Another well-publicized and strongly debated legislative effort at overturning the juvenile justice system is the Omnibus Crime Control Act of 1997. Under Title XI, the purpose of the Act is to "reform juvenile law so that the paramount concerns of the juvenile justice system are providing for the safety of the public and holding juvenile wrongdoers accountable for their actions, while providing the wrongdoer a genuine opportunity for self-reform. . . ."29 The sole focus of the Act is to address society's concerns with little consideration of the root problems which are manifested in juvenile offenders. Moreover, Section 1112 of the Act amends Section 5032 of Title 18 of the United States Code to allow prosecutors, in the person of the United States Attorney, the discretion of determining when juveniles 14 years of age and older have allegedly committed an act which, if committed by an adult, would be actionable as a criminal offense subject to adjudication in the appropriate federal district court.30Accordingly, much like the Crime Bill of 1994, while the Crime Control Act seeks to establish more punitive measures by avoiding judicial discretion, it also traps children into the rigidity of legislation which does not allow for individual examination. As children become subject to the mechanics of legislation which is less prophetic, yet politically correct, they become human sacrifices in society's quest to resolve real problems with merely prophylactic remedies.
Prosecutorial Waiver
The most controversial of the three transfer mechanisms is prosecutorial waiver. Under this mechanism, prosecutors are empowered with the charging decision, thus determining in which forum the case will be adjudicated. This is a statutory mechanism more akin to the judicial waiver mechanism than to the legislative waiver mechanism, as it provides the prosecutor with the exclusive discretion formerly reserved for juvenile court judges.31In those instances, where the prosecutor's charge subjects the juvenile to the concurrent jurisdiction of the juvenile and criminal courts, the prosecutor is then free to select the court system in which to file the case. Because there is little statutory guidance, this process invites arbitrary, capricious transfer decisions on the part of the prosecutor.32 The juvenile is subsequently denied a judicial waiver hearing and not provided an opportunity for rebuttal after conviction because the transfer orders cannot be appealed under the prosecutorial transfer method.33
Critics of the prosecutorial waiver mechanism argue that it fails to protect the best interests of juveniles, when prosecutors are not required to consider those interests. Pursuant to the Fifth and Fourteenth Amendments, all persons including juveniles should be entitled to due process and equal protection under the law. The grant of unilateral authority to prosecutors to determine when to subject juveniles to adult criminal court and possible imprisonment in adult penal institutions, may unfairly deny juveniles a meaningful opportunity to be heard and show why, by virtue of an independent examination and consideration of the factors enumerated above, they are amenable to rehabilitation. This view was best articulated by Justices Douglas, Brennan and Marshall in the case of United States v. Bland: 34
A juvenile or "child" is placed in a more protected position than an adult . . . . In that category [the juvenile] is theoretically subject to rehabilitative treatment. Can [the juvenile], on the whim or caprice of a prosecutor, be put in the class of the run-of-the-mill criminal defendants, without any hearing, without any chance to be heard, without an opportunity to rebut the evidence against [the juvenile], without a chance of showing that [the juvenile] is being given an invidiously different treatment from others in [the juvenile's] group?
This process is, additionally, unduly burdensome on the juvenile. When a juvenile is tried in the juvenile court system, the burden of proving that he should be tried as an adult rests with the prosecution. If the prosecution fails to carry this burden of proof, then justifiably jurisdiction may be retained by the juvenile court. However, under the prosecutorial waiver mechanism, the prosecution has no burden of proving why the juvenile offender should be transferred to adult criminal court. Yet, once the juvenile is transferred, he bears the burden of proving that he should not be tried as an adult. Thus, under this mechanism, there is no procedural protection afforded to juvenile offenders.
Waiver Mechanisms and Due Process
Discretionary judicial waiver is superior to the alternative methods being adopted and employed in many jurisdictions because, more than any other, it comports with the Due Process Clause of the Fourteenth Amendment.The Amendment provides:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any persons of life, liberty or property, without due process of law. . . ."35
Early on, the courts quickly recognized that the same constitutional rights afforded adult criminals should be extended to juveniles as well. Thus, due process and fundamental fairness demand that transfer decisions be premised on a full and fair investigation and evaluation of the juvenile's prior offenses, previous involvement in the juvenile justice system, and most importantly, his or her potential for rehabilitation.
Although legislative waiver is, perhaps, more fair than prosecutorial, it is also more injurious. While it excludes the option for an arbitrary exercise of discretion, it is damaging in that there is no opportunity for a waiver hearing or consideration of whether the juvenile is amenable to rehabilitation in juvenile court. Contrastingly, prosecutorial waiver opens the door for an abuse of the arbitrary exercise of discretion which it affords to potentially over-zealous prosecutors. Thus, neither legislative nor prosecutorial waiver comport with the constitutional demands of due process, in that they both fail to afford the juvenile offender a full investigation or fair evaluation of his individual circumstances prior to transfer.
Critics of both legislative and prosecutorial waivers believe that the aftermath of a juvenile's adult status conviction and subsequent confinement will have the resultant effect of being more harmful to both the juvenile offender and society upon his or her re-entry into the community. These same critics overwhelmingly endorse a system where discretion in making waiver determinations remains with juvenile court judges.
The process of permitting juvenile court judges to make waiver determinations based upon a case-specific evaluation is consistent with case law, which since 1966 has sought to balance the need to afford juveniles the added protection of the juvenile courts while ensuring that their constitutional rights, the same as those granted to adult offenders were not abridged.
The first juvenile case accepted for Supreme Court review was Kent v. United States.36 In an opinion issued by Justice Fortas, the Court ruled that the transfer procedure was invalid because it was done without a hearing, without the assistance of counsel and without the judge stating the reasons for the transfer. The Kent Court also delineated those factors which should be considered by juvenile court judges when determining whether to transfer a juvenile to adult court.37
The second most important case resulting in the incorporation of constitutional rights into the juvenile courts was In re Gault.38 In yet another, opinion authored by Justice Fortas, Gault held that all juveniles were entitled to the constitutional rights of notice, counsel, confrontation and cross-examination of witnesses and invoking the privilege against self-incrimination. According to the court, this decision was not one which would destroy the juvenile justice system, although it would alter it. It was, however, this extension of constitutional safeguards and procedural rights to juvenile offenders that is the underpinning of the arguments for a more punitive juvenile system and the redistribution of waiver responsibilities. In fact, Gault was the precursor to the adoption of the legislative and prosecutorial waiver mechanisms.
Discretionary judicial waiver is the only one of the three mechanisms which provides for a hearing before a juvenile is sent to adult criminal court jurisdiction. During the hearing, the juvenile court judge serves as a non-partisan arbiter of the dispute and protector of juvenile rights.39 Justification for waiver is exclusive. The primary purpose and necessity for transferring juvenile offenders to criminal court is in those instances when the maximum punishment in juvenile court is clearly inadequate for a particular offender, not a class of offenders.
The use and abuse of the legislative and prosecutorial waiver mechanisms contravene the individualistic and rehabilitative philosophy of the system of juvenile jurisprudence. These mechanisms fail to take into account the juvenile's life circumstances, which may be unique to or evidence of a traumatic or problematic life history.
Consequently, proponents of maintaining the discretion of juvenile court judges believe that transferring juveniles without the benefit of individual review and consideration will result in "harder," more violent, and recidivistic offenders. Just as the Supreme Court acknowledged the broad or "substantial degree of" discretion given the juvenile court in determining whether it should waive or retain jurisdiction, the Court also emphasized that such discretion was not a "license for arbitrary procedure" and did not permit a judge to determine solely, without any representation of the child, the "critical" issue of whether waiving the juvenile would deprive him or her of the protections of juvenile court. This same philosophy should remain applicable and binding where legislative or prosecutorial waiver is employed.
Moreover, proponents of maintaining the juvenile justice system and discretionary judicial waiver believe that the individual review process will afford juvenile offenders the benefit of a more fair process which comports with constitutional mandates. Certainly, it will provide for a less arbitrary, non-partisan, non-adversarial balancing of the mutual interests of the juvenile offender and society.
Most Viable Option
It is most important that American society remembers that while the reduction of crime is an issue of monumental importance, so too is the fate of America's children. The reality is that whether they are honor-roll students or juvenile offenders, juveniles are individuals whose actions are influenced and often dictated by the poor quality of their lives.It has become increasingly evident that the philosophies of "they did the crime, so they should do the time" and "lock 'em up and throw away the key" have failed. These philosophies have failed to increase public safety by ridding American streets of the "parasitic", "depraved", "super-predators", It is all the more evident that it is not enough to simply address the offenses. It is vital that America addresses the problems which manifest themselves in an ever-increasing sector of society whose responses to their problems cause them to become offenders. This is particularly true in the case of America's youth. In those instances -- where it is clear from a full investigation based upon established and, perhaps, universal criteria that the juvenile offender is not susceptible to the rehabilitation offered through the juvenile justice system -- then it is imperative that the offender be transferred to adult criminal court where adequate sanctions can be imposed. This process can be most effectively achieved through discretionary judicial waiver which is free of the prosaic, unvarying measures inherent in the legislative waiver mechanism and free of the potential for arbitrary, unbridled actions likely to be evidenced in the prosecutorial waiver mechanism.
Only through the mechanism of discretionary judicial waiver may the interests of both society and the juvenile be weighed against each other in a neutral setting most capable of achieving a fair outcome. This mechanism, albeit, not free of defects and much in need of revision, is the most viable option. Furthermore, discretionary judicial waiver is most consistent with the juvenile court sentencing philosophy articulated upon its founding 99 years ago.
Notes
1. United States Department of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics (1993).2. Omnibus Crime Control Act of 1997. Title XI-Violent and Repeat Juvenile Offenders, 105th Congress, 1st Session, 183 (1997).
3. Transfer is the "act of moving a juvenile's case from juvenile court to adult criminal court." Katherine L. Evans, Comment, Trying Juveniles as Adults: Is the Short Term Gain of Retribution Outweighed by the Long Term Effects on Society?, 62 Miss. L.J. 95, 98 (1992). State legislatures created the transfer mechanism for those juvenile cases more appropriately addressed by the criminal system [adult system]. Dean J. Champion & G. Larry Mays, Transferring Juveniles to Criminal Courts: Trends and Implications for Criminal Justice 59 (1991); citing the President's Commission on Law Enforcement and Administration of Justice (1967).
4. D. Hamparian, L. Estep, S. Muntean, R. Priestino, R. Swisher, P. Wallace, & J. White, Major Issues in Juvenile Justice Information and Training: Youth In Adult Courts: Between Two Worlds (1982).
5. Barry Feld. Bad Law Makes Hard Cases: Reflections on Teen-Aged Axe-Murders, Judicial Activism and Legislative Default, 8 J.L. & Inequality 1, 4-5 (1989).
6. Dean J. Champion & G. Larry Mays, Transferring Juveniles to Criminal Courts: Trends and Implications For Juvenile Justice (1991). The authors assert that in spite of the increased use of transfer, even adult courts have a tendency to be more lenient on juvenile offenders. 7. Champion & Mays, supra note 6, at 6.
8. Royce S. Buckingham, The Erosion of Juvenile Court Judge Discretion in the Transfer Decision Nationwide, 29 Williamette L. Rev. 689, 691 (1993).
9. Jeffrey Fagan & Elizabeth P. Deschene, Determinants of Judicial Waiver Decisions for Violent Juvenile Offenders, 81 J. Crim. L. & Criminology 314, 318 (1990).
10. Juvenile court proceedings were viewed as civil proceedings, rather than criminal in several respects. In juvenile court, children were not found guilty, but were determined to be in need of the court's help. The juvenile offender was referred to as a "delinquent" and not a "criminal." Juvenile proceedings were less stigmatized because they were more private and not public as were adult hearings. The nature of the juvenile justice system was paternalistic and non-adversarial.
11. Task Force on Sentencing Policy Toward Young Offenders, Twentieth Century Fund, Confronting Youth Crime (1978).
12. Susan K. Knipps, What is a 'Fair' Response to Juvenile Crime?, 20 Fordham Urban L.J. 455, 456 (1993).
13. "Holding juvenile proceedings in secret denies victims of crime the opportunity to attend and be heard at such proceedings, helps juvenile offenders to avoid accountability for their actions, and shields juvenile proceedings from public scrutiny and accountability," Omnibus Crime Control Act of 1997, supra note 2, at 184.
14. Gordon A. Martin, Jr., The Delinquent and the Juvenile Court: Is There Still A Place for Rehabilitation?, 25 Conn. L. Rev. 57, 62-63 (1992).
15. William A. Kurtz & Paul C. Gianelli, Ohio Juvenile Law 9, 137 (3d ed. 1994).
16. Champion & Mays, supra note 6, at 61.
17. Jeffrey S. Schwartz, Note, The Young Offender: Transfer to the Adult Court and Subsequent Sentencing, 6 Crim. Justice. J. 281, 290 (1983); citing a 1938 juvenile court case.
18. Kurtz & Gianelli, supra note 15, at 137.
19. Bruce W. Oreinstein and Robert B. Levinson. Annual Security Issue and Buyers Guide, Juveniles Waived Into Adult Institutions, American Correctional Association, Inc., Vol. 58, No. 1, July 1, 1996; citing Butts, J.A., Offenders in Juvenile Court, (1994.)
20. Barry C. Feld, Reference of Juvenile Offenders for Adult Prosecution: The Legislative Alternative for Asking Unanswered Questions, 62 Minn .L. Rev. 515 (1978).
21. Martin, supra note 14, at 70.
22. Id.
23. Barry C. Feld, The Transformation of the Juvenile Court, 75 Minn. L. Rev. 691, 720 (1991).
24. United States General Accounting Office: Juvenile Justice: Juveniles Processed in Criminal Court and Case Dispositions 19 (1995). Alabama, Arkansas, California, Connecticut, Delaware, the District of Columbia, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, New Jersey, North Carolina, North Dakota, Oregon, Rhode Island, South Carolina, Tennessee, Vermont, Virginia, and Wisconsin have enacted legislation broadening the categories of juveniles who can be transferred to adult criminal court.
25. Champion & Mays, supra note 6, at 70.
26. Included among these crimes are murder, attempted murder, assault with intent to murder, assault with intent to commit a felony, assault with a dangerous weapon, commission of a robbery with a firearm, bank robbery, aggravated sexual abuse by threat or force, or aggravated sexual abuse with children. Juveniles may also be charged for the commission of offenses related to drug and firearm possession, transporting, shipping and receiving.
27. H.R. Conf. Rep. No. 711, 103d Congress, 2d Session, 245 (1994).
28. Id.
29. Omnibus Crime Control Act of 1997, supra note 2, at 185.
30. Omnibus Crime Control Act of 1997, supra note 2, at 187. "A juvenile who is not less than 14 years of age and who is alleged to have committed an act that, if committed by an adult, would be a criminal offense, shall be tried in the appropriate district court of the United States -- (1) as an adult at the discretion of the United States Attorney in the appropriate jurisdiction, upon a finding by that United States Attorney, which finding shall not be subject to review in or by any court, trial or appellate, that there is a substantial Federal interest in the case or the offense to warrant the exercise of Federal jurisdiction, if the juvenile is charged with a Federal offense that --"(A) is a crime of violence; or (B) involves a controlled substance for which the penalty is a term of imprisonment of not less than 5 years; and (2) in all other cases as a juvenile.
31. Donna M. Bishop & Charles E. Frazier, Transfer of Juveniles to Criminal Court: A Case Study and Analysis of Prosecutorial Waiver, 5 Notre Dame J. L. Ethics & Public Policy 281, 284-85 (1991).
32. Donna M. Bishop et al., Prosecutorial Waiver: Case Study of a Questionable Reform, 35 Crime & Delinq. 179, 181 (1989).
33. Bishop & Frazier, supra note 31, at 285.
34. 412 U.S. 909, 911 (1973).
35. Amendment XIV, Section 1; United States Constitution.
36. 383 U.S. 541 (1966). In violation of the District of Columbia's juvenile code, 16-year old Morris Kent was arrested for the rape and robbery of a woman. Without notification to his parents or juvenile authorities, the police interrogated him for several hours. He was subjected to further juvenile code violations when he was given home detention without the benefit of arraignment and no judicial determination of probable cause. He was waived to adult court by a juvenile court judge. There was no express statement as to the basis of the juvenile court judge's determination for waiver of juvenile court jurisdiction.
37. The factors enumerated in Kent were classified according to the potential danger to the public as contrasted by the juvenile offenders amenability to treatment. Included among the factors were the following:
i. The seriousness of the alleged offense to the community and whether the protection of the community requires waiver;
ii. Whether the alleged offense was committed in a an aggressive, violent, premeditated or willful manner;
iii. Whether the alleged offense was against persons or against property, greater weight being given to offenses against persons especially if personal injury resulted;
iv. The prosecutive merit of the complaint, i.e., whether there is evidence upon which a Grand Jury may be expected to return an indictment upon consultation with the U.S. Attorney;
v.The desirability of trial and disposition of the entire offense in one court when the juvenile's associates in the alleged offense are adults who will be charged with a crime;
vi. The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation, emotional attitude and pattern of living.
vii. The record and previous history of the juvenile, including previous contacts with the Youth Aid Division, other law enforcement agencies, juvenile courts and other jurisdictions, prior periods of probation to this Court, or prior commitments to juvenile institutions;
viii. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile if he is found to have committed the alleged offense by the use of procedures, services and facilities currently available to the Juvenile Court.
38. 387 U.S. 1 (1967). Fifteen-year-old Gerald Gault along with a friend were arrested after a neighbor complained of harassing phone calls. Because Gault was already on probation for a prior offense he was taken to a detention home. Gault's parents were not served with adequate or timely notice of the charges filed against their son, nor was any reason provided for his detention. The Gaults alleged that the guarantees of due process were violated when the court failed to notify them of the charges, failed to afford the right to counsel, right to confrontation and cross-examination, preserve Gault's privilege against self-incrimination and grant the right to appellate review.
39. T. Kenneth Moran & John L. Cooper, Discretion and the Criminal Justice Process 53 (1983).