Bullet All States allow juveniles to be tried as adults in criminal court under certain circumstances
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Figure 8 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 1920's. Other States have permitted transfers since at least the 1940's. 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.

Many States have changed the boundaries of juvenile court jurisdiction

Traditionally, discretionary judicial waiver was the transfer mechanism on which most States relied. Beginning in the 1970's 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 1990's. From 1992 through 1997, all but six States enacted or expanded transfer provisions. An increasing number of State legislatures have enacted mandatory waiver or exclusion statutes. Less common, then and now, are concurrent jurisdiction provisions.

In most States, juveniles convicted in criminal court cannot be tried in juvenile court for subsequent offenses

In 31 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.

Judicial waiver is the most common transfer provision

In all States except 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, statutes limit waiver by age and offense.

Waiver provisions vary in terms of the degree of decisionmaking flexibility allowed. Under some waiver provisions, the decision is entirely discretionary. Under others, there is a rebuttable presumption in favor of waiver. Under others, waiver is mandatory 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 typically include the juvenile's 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 interests of the child. The waiver process must also adhere to certain constitutional principles of fairness (see Supreme Court decisions earlier in this Bulletin).

Figure 9

Few States allow prosecutorial discretion, but many juveniles are tried as adults in this way

As of the end of the 1997 legislative session, 15 States had concurrent jurisdiction provisions, which gave both juvenile court and criminal court original jurisdiction in certain cases. Thus, prosecutors have discretion to file such cases in either court.

State appellate courts have taken the view that prosecutor discretion is equivalent to the routine charging decisions made 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 in Kent. Some States, however, have written prosecutorial transfer guidelines.

Figure 10

Concurrent jurisdiction is typically limited by age and offense criteria. Often concurrent jurisdiction is limited to cases involving serious, 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.

There are no national data at the present time on the number of juvenile cases tried in criminal court under concurrent jurisdiction provisions. Florida alone reports an average of nearly 5,000 such transfers per year.

Statutory exclusion accounts for the largest number of juveniles tried as adults in criminal court

Legislatures "transfer" large numbers of young offenders to criminal court by enacting statutes that exclude certain cases from juvenile court jurisdiction. As of the end of the 1997 legislative session, 28 States had statutory exclusions. Although not typically thought of as transfers, large numbers of youth under age 18 are tried as adults in the 13 States where the upper age of juvenile court jurisdiction is 15 or 16. If the 1.8 million 16- and 17-year-olds in these 13 States are referred to criminal court at the same rate that 16- and 17-year-olds are referred to juvenile court in other States, then as many as 218,000 cases involving youth under the age of 18 could have faced trial in criminal court in 1996 because the offenders were defined as adults under State laws.

Many States exclude certain serious offenses from juvenile court jurisdiction. State laws typically also set age limits for excluded offenses. The offenses most often excluded are capital crimes and murders, and other serious offenses against persons. Some States exclude juveniles charged with felonies if they have prior felony adjudications or convictions. Minor offenses, such as traffic, watercraft, fish, or game violations, are often excluded from juvenile court jurisdiction in States where they are not covered by concurrent jurisdiction provisions.

Figure 11

Criminal courts may transfer cases to juvenile court or order juvenile sanctions

Of the 35 States with statutory exclusion or concurrent jurisdiction provisions, 20 also have provisions for transferring "excluded" or "direct filed" cases from criminal court to juvenile court under certain circumstances. This procedure is sometimes referred to as "reverse" waiver or transfer. In some States, juveniles tried as adults in criminal court may be transferred to juvenile court for disposition. Some States allow juveniles tried as adults in criminal court to receive dispositions involving either criminal or juvenile court sanctions, under what have come to be known as "blended sentencing" provisions.

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1999 National Report Series, Juvenile Justice
Bulletin: Juvenile Justice: A Century of Change
December 1999