All states allow juveniles to be tried as adults in criminal court under certain circumstances
Transferring juveniles to criminal court is not a new phenomenon
In some states, provisions that enabled transfer of certain juveniles to criminal court were in place before the 1920s. Other states have permitted transfers since at least the 1940s. For many years, all states have had at least one provision for trying certain youth of juvenile age as adults in criminal court. Such provisions are typically limited by age and offense criteria. Transfer mechanisms vary regarding where the responsibility for transfer decisionmaking lies. Transfer provisions fall into three general categories:
Judicial waiver: The juvenile court judge has the authority to waive juvenile court jurisdiction and transfer the case to criminal court. States may use terms other than judicial waiver. Some call the process certification, remand, or bind over for criminal prosecution. Others transfer or decline rather than waive jurisdiction.
Concurrent jurisdiction: Original jurisdiction for certain cases is shared by both criminal and juvenile courts, and the prosecutor has discretion to file such cases in either court. Transfer under concurrent jurisdiction provisions is also known as prosecutorial waiver, prosecutor discretion, or direct file.
Statutory exclusion: State statute excludes certain juvenile offenders from juvenile court jurisdiction. Under statutory exclusion provisions, cases originate in criminal rather than juvenile court. Statutory exclusion is also known as legislative exclusion.
Nearly all states have expanded their transfer provisions recently
Traditionally, discretionary judicial waiver was the transfer mechanism on which most states relied. Beginning in the 1970s and continuing through the present, however, state legislatures have increasingly moved juvenile offenders into criminal court based on age and/or offense seriousness, without the case-specific consideration offered by the discretionary juvenile court judicial waiver process.
State transfer provisions changed extensively in the 1990s. From 1992 through 1999, 49 states and the District of Columbia enacted or expanded their transfer provisions. Nebraska was the only exception. An increasing number of state legislatures have enacted mandatory waiver or exclusion statutes. Less common, then and now, are concurrent jurisdiction provisions.
Criminal courts may send transferred cases to juvenile court
Several states have provisions for sending transferred cases from criminal to juvenile court for adjudication under certain circumstances. This procedure, sometimes referred to as reverse waiver, generally applies to cases initiated in criminal court under statutory exclusion or concurrent jurisdiction provisions. Of the 36 states with such provisions at the end of the 1999 legislative session, 21 also have provisions that allow certain transferred juveniles to petition for a reverse. Reverse decision criteria often parallel a states discretionary waiver criteria. In some states, transfers convicted in criminal court may be reversed to juvenile court for disposition.
Most states have once an adult, always an adult provisions
In 34 states, juveniles who have been tried as adults must be prosecuted in criminal court for any subsequent offenses. Nearly all of these once an adult, always an adult provisions require that the youth must have been convicted of the offenses that triggered the initial criminal prosecution.
Laws in 22 states allow blended sentencing
Blended sentencing statutes allow courts to impose juvenile and/or adult correctional sanctions on certain young offenders. In some states, blended sentencing authority lies with the juvenile court, in others with the criminal court.
Blended sentencing authority specified by statute, 1999:
Blended sentencing has been referred to as a middle ground between traditional juvenile and adult sanctions. Judges have flexibility to choose from a broader array of punishments. In some states, the adult sanction may be suspended but can be reinstated if the terms of the juvenile sanction are violated. A blended sentence, therefore, is seen as one last chance for the juvenile to avoid adult sanctions.
Judicial waiver remains the most common transfer provision
In the District of Columbia and all states except Massachusetts, Nebraska, New Mexico, and New York, juvenile court judges may waive jurisdiction over certain cases and transfer them to criminal court. Such action is usually in response to a request by the prosecutor; in several states, however, juveniles or their parents may request judicial waiver. In most states, laws limit waiver by age and offense.
Waiver provisions vary in terms of the degree of decisionmaking flexibility allowed. The decision may be entirely discretionary, there may be a rebuttable presumption in favor of waiver, or waiver may be mandatory. Some provisions mandate that waiver is required once the juvenile court judge determines that certain statutory criteria have been met. Mandatory waiver provisions are distinguished from statutory exclusion provisions in that the case originates in juvenile rather than criminal court.
Statutes establish waiver criteria other than age and offense
In some states, waiver provisions target youth charged with offenses involving firearms or other weapons. Most state statutes also limit judicial waiver to juveniles who are no longer amenable to treatment. The specific factors that determine lack of amenability vary, but they typically include the juveniles offense history and previous dispositional outcomes. Such amenability criteria are generally not included in statutory exclusion or concurrent jurisdiction provisions.
Many statutes instruct juvenile courts to consider other factors when making waiver decisions, such as the availability of dispositional alternatives for treating the juvenile, the time available for sanctions, public safety, and the best interest of the child. The waiver process must also adhere to certain constitutional principles of due process.
Transfer decisionmaking has changed
Studies of transfer in the 1990s found that, independent of law changes, waiver decisions have changed. One Pennsylvania study found that waiver was more likely for youth in 1994 than for youth in 1986. Although Pennsylvanias waiver law did not change, the waiver criteria seemed to change. Analysis showed that both the 1986 and 1994 groups had similar numbers of prior adjudications and residential placements. However, juveniles with cases waived in 1994 had gone through the courts full range of sanctions with less serious offense histories than youth with cases waived in 1986.
Two other studies focused on cases judicially waived in South Carolina and in Utah in the mid-1980s through the mid-1990s. Analyses found that juvenile court judges granted most waiver requests. Overall, judges approved approximately 8 out of 10 waiver requests made by prosecutors. In South Carolina, the proportion of waiver requests granted rose from about 70% in the mid-1980s to 96% in 1994.
Two factors distinguished cases that judges waived from those not waived: the seriousness of the juveniles crime and the extent of his or her court history. The cases most likely to be waived, regardless of the offenders court history, involved serious person offenders who used weapons and injured someone. Even first-time offenders were waived if they injured their victim. For other cases, the court took into account the youths history; those with longer histories were more likely to be waived. This coincides closely with the waiver criteria outlined in the U.S. Supreme Courts Kent decision. The Court stated that, An offense . . . will be waived if . . . it is heinous or of an aggravated character, oreven though less seriousif it represents a pattern of repeated offenses. . . .
Few states allow prosecutorial discretion
At the end of the 1999 legislative session, 15 states had concurrent jurisdiction provisions, which gave both juvenile court and criminal court original jurisdiction in certain cases. Under such provisions, prosecutors have discretion to file eligible cases in either court.
Concurrent jurisdiction is typically limited by age and offense criteria. Often concurrent jurisdiction is limited to cases involving violent or repeat crimes or offenses involving firearms or other weapons. Juvenile and criminal courts often also share jurisdiction over minor offenses such as traffic, watercraft, or local ordinance violations.
No national data exist on the number of juvenile cases tried in criminal court under concurrent jurisdiction provisions. In Florida, which has a fairly broad concurrent jurisdiction provision, prosecutors sent more than 4,000 youth to criminal court in fiscal year 199899. In comparison, juvenile court judges nationwide waived an estimated 8,100 cases to criminal court in 1998.
State appellate courts have taken the view that prosecutorial discretion is equivalent to the routine charging decisions prosecutors make in criminal cases. Thus, prosecutorial transfer is considered an executive function, which is not subject to judicial review and is not required to meet the due process standards established by the U.S. Supreme Court. Some states, however, do have written guidelines for prosecutorial transfer.
In most states, laws allow transfer of certain very young offenders
At the end of the 1999 legislative session, in 23 states and the District of Columbia, no minimum age was specified in at least one judicial waiver, concurrent jurisdiction, or statutory exclusion provision for transferring juveniles to criminal court. For example, Pennsylvanias murder exclusion has no minimum age specified. Other transfer provisions in Pennsylvania have age minimums set at 14 or 15. Among states where statutes specify age limits for all transfer provisions, age 14 is the most common minimum age specified across provisions.
Minimum transfer age specified in statute:
Statutory exclusion accounts for the largest number of transfers
Legislatures transfer large numbers of young offenders to criminal court by enacting statutes that exclude certain cases from juvenile court jurisdiction. At the end of the 1999 legislative session, 29 states had statutory exclusion provisions. State laws typically set age and offense limits for excluded offenses. The offenses most often excluded are murder, capital crimes in general (offenses punishable by death or life imprisonment), and other serious offenses against persons. (Minor offenses such as traffic, watercraft, and wildlife violations are often excluded from juvenile court jurisdiction in states where they are not covered by concurrent jurisdiction provisions.)
Although not typically thought of as transfers, large numbers of youth younger than age 18 are tried in criminal court in the 13 states where the upper age of juvenile court jurisdiction is set at 15 or 16. Nearly 2 million 16- and 17-year-olds live in these 13 states. If these youth are referred to criminal court at the same rate that 16- and 17-year-olds elsewhere are referred to juvenile court, then a large number of youth younger than age 18 face trial in criminal court because they are defined as adults under state laws. In fact, it is possible that more youth younger than age 18 are tried in criminal court in this way than by all other transfer mechanisms combined.