Transfer mechanisms

Juveniles may be prosecuted in criminal court under certain circumstances, and State law determines the conditions under which youth charged with a criminal law violation can be processed in the criminal, rather than the juvenile, justice system. The legal mechanisms for “transferring” juveniles from the juvenile to the criminal justice system differ from State to State and may mandate criminal court processing for juveniles or leave it to the discretion of specific justice system officials. These mechanisms vary in the degree of discretion involved in the transfer decision and are categorized according to who makes the decision.

Under judicial waiver provisions, the juvenile court judge is the decisionmaker. Judicial waiver provisions are generally limited by age and offense criteria and typically include criteria relating to the juvenile’s potential for rehabilitation. Some provisions make the waiver decision entirely discretionary. Other provisions establish a presumption in favor of waiver, reducing judicial discretion. And some provisions make waiver mandatory under certain age and offense conditions, completely removing judicial discretion.

Under statutory exclusion provisions, legislatures have decided that certain young offenders are outside the jurisdiction of the juvenile justice system. The broadest examples of this are States that have defined all 17-year-olds or all 16- and 17-year-olds as “adults” by setting the upper age of juvenile court jurisdiction at 15 or 16. Most statutory exclusion provisions target serious offenses and older youth.

Concurrent jurisdiction provisions give prosecutors the discretion to file certain cases in juvenile or criminal court. Under such provisions, both courts share original jurisdiction. Prosecutor discretion provisions are limited by age and offense criteria.

Most States have historically relied primarily on judicial waiver provisions. In recent years, however, a growing number of States have implemented statutory exclusion and/or concurrent jurisdiction provisions. Most States now rely on a combination of transfer provisions, the most common being judicial waiver together with statutory exclusion (18 States). For detailed information on judicial waiver provisions, readers should refer to appendix A. Between 1992 and 1997, all but six States expanded their statutory provisions for transferring juveniles to criminal court, making it easier for more juveniles to be transferred. For example, States have added statutory exclusions, expanded the list of offenses eligible for transfer, and/or lowered the minimum ages at which a juvenile may be transferred under one or more mechanisms.

Prior research on transfer

Transfer research in the 1970’s and 1980’s found that, contrary to conventional wisdom, transfers (1) were not necessarily violent offenders, (2) did not necessarily receive harsher sanctions in criminal court than they would have received in juvenile court, (3) were not necessarily incarcerated, and (4) if incarcerated, did not necessarily receive longer sentences than their juvenile court counterparts. Research in the 1990’s that compared the recidivism outcomes of transfers and of youth retained in the juvenile system found that transfers were more likely to recidivate within 2 years. After a 6-year followup period, there was no difference between the groups in the proportion of offenders who recidivated, although the transferred youth who reoffended did so more quickly and more often, on average, than delinquents handled in juvenile court who reoffended. Even though such research attempted to study comparable groups (matching transfers with delinquents on several demographic and case variables), it left open the question whether observed differences existed because transfers were “tougher” youth. The research presented in this Summary was designed to improve understanding of the differences between cases transferred to criminal court and “similar” cases retained in juvenile court.

Four studies of juvenile transfers to criminal court in the 1990’s

Researchers at the National Center for Juvenile Justice (NCJJ) designed a set of four studies to identify the factors decisionmakers consider when transferring cases from the juvenile to the criminal justice system. Researchers selected study sites with large samples of cases that met the State’s transfer criteria and contained sufficient detail on the crime incident, the youth’s court history, and case processing characteristics to model the decisionmaking process in the jurisdiction. Studies in South Carolina and Utah considered all cases in which the prosecutor requested a judicial waiver. One of the two Pennsylvania studies compared the characteristics of juveniles waived in 1994 with those waived in 1986 to assess whether the waiver criteria had changed during this period—a period during which the State’s transfer legislation had not changed, but public attitudes toward juvenile transfers were changing. The second Pennsylvania study explored the decisionmaking process for cases involving young offenders that began in criminal court rather than juvenile court under Pennsylvania’s 1996 statutory exclusion legislation.

Findings: What criteria are used in the transfer decision?

Judges concurred with most waiver requests made by prosecutors (solicitors) in South Carolina and Utah. Two factors distinguished cases that were waived from those that were not: the extent of a juvenile’s court history and the seriousness of his or her offense. The data show that although common criteria were used in waiver decisions in South Carolina and Utah, the decisionmaking process in each State retained a local flavor. In both South Carolina and Utah, the juvenile court was less likely to approve a waiver request in cases involving juveniles who did not have an extensive history with the court. However, the courts in these States approved waiver requests in the vast majority of cases involving juveniles who had no formal juvenile court record prior to the waiver incident. Thus, court history was not the only factor considered in deciding whether to approve a waiver request.

In South Carolina, offense seriousness was also a key determinant in the waiver decision. Regardless of a youth’s court history, cases involving serious person offenses were more likely to be approved for waiver than other types of cases. Although the seriousness of the offense category alone was not as key in Utah as it was in South Carolina, the juvenile court in Utah was also quite consistent in its waiver decisionmaking. Characteristics of the crime incident were important in decisions to waive in Utah. Waiver was most likely to be granted in cases involving serious person offenders who used weapons and seriously injured someone, regardless of the offenders’ court history. Even first-time offenders in Utah were waived if they seriously injured their victim. For other types of cases, the court looked to a youth’s court history to decide whether to waive the matter to criminal court. In these cases, youth with long histories were more likely to be waived than those with shorter histories.

Findings: Did the nature of transfer decisionmaking change during the 1980’s and 1990’s over and above changes in legislation?

A youth referred to juvenile court in Pennsylvania for a delinquency offense in 1994 was far more likely to be judicially waived to criminal court than a youth referred in 1986. The large increase in the likelihood of waiver does not appear to be related to a change in transfer legislation, the growth of the juvenile population, or a change in the overall number of juvenile arrests. Between 1986 and 1994, the 84-percent growth in judicial waivers was greater even than the 32-percent increase in juvenile arrests for violent crimes.

The increase in waiver from 1986 to 1994 appears to have been related to a change in the waiver criteria. Although the number of juveniles waived to the criminal system in Pennsylvania for committing violent offenses was much larger in 1994 than in 1986, the proportion of youth committing violent offenses among the total waived was similar in 1986 and 1994. The growth of waiver in Pennsylvania was greatly affected by the waiver of a much larger number of juveniles charged with drug offenses—in fact, about 40 percent of the overall increase in the number of waivers between 1986 and 1994 can be attributed to these youth. However, additional factors also contributed to the increase in waivers.

Another important difference between the 1986 and the 1994 waiver groups was that juveniles waived in 1994 had less serious court histories than juveniles waived in 1986. Although the court histories of juveniles in each group were similar (in terms of the number of prior adjudications and prior residential placements), the 1994 waiver group included a smaller proportion of juveniles who had been classified as serious person offenders prior to the transfer incident. Thus, both the 1986 and the 1994 groups had progressed through the court’s range of sanctioning levels before being waived to criminal court. The 1994 group, however, stepped through the sanctioning alternatives with less serious offense histories.

Therefore, the increased use of judicial waiver in Pennsylvania between 1986 and 1994 appears to have been related to several factors, including the following:

• The juvenile justice system’s response to an increase in juvenile violence.
  
  
• The court’s severe response to its increasing caseload of juvenile drug offenders.
  
  
• The system’s assessment that a greater proportion of adjudicated delinquents was no longer amenable to treatment within the juvenile justice system.

Findings: What was the impact of new legislation that excludes additional offenders from juvenile court jurisdiction?

In many ways, implementation of Pennsylvania’s 1996 exclusion law mimicked the State’s judicial waiver process in previous years. Under the statute, when a case is not dismissed at the preliminary hearing, the criminal court judge’s decision to keep the case in criminal court or to decertify it to juvenile court must be based on the same factors that a juvenile court judge uses to decide whether a youth should be waived to criminal court: the youth’s age, prior referrals to juvenile court, and amenability to treatment.

The juvenile courts in the three Pennsylvania study counties judicially waived 277 youth in 1995. In the transition year of 1996, when the State’s exclusion law took effect, the number of waivers dropped to 157—a decrease of 120 youth. Of the 473 youth excluded from juvenile court jurisdiction in these counties in 1996, a total of 109 were convicted in criminal court. Assuming that cases still open in criminal court at the end of the study period resulted in the same proportion of convictions and dismissals, approximately 135 of the 473 excluded youth eventually would have been convicted in criminal court. The drop in the number of waived youth between 1995 and 1996—120—is close to the number of excluded youth convicted in criminal court when all cases are closed—135. These numbers suggest that the ultimate impact of Pennsylvania’s 1996 exclusion legislation was to retain in criminal court those cases that the juvenile court would have judicially waived had it been given the opportunity. Consequently, regardless of the transfer path in Pennsylvania—judicial waiver or legislative exclusion—about the same number of youth were sentenced to an adult correctional facility.

Therefore, considering only case outcomes, the impact of Pennsylvania’s new exclusion statute was negligible. The statute, however, increased the processing time for cases eventually handled within the juvenile justice system and placed an additional burden on local jails and the criminal courts.

Juvenile Transfers to Criminal Court in the 1990's: Lessons Learned From Four Studies

August 2000