Transfer mechanisms

All States have established legal mechanisms whereby some juveniles may be prosecuted within the criminal justice system. These mechanisms, while having different labels across the States, fall into three general categories, according to who makes the transfer decision.1 The three mechanisms are judicial waiver, statutory exclusion, and concurrent jurisdiction; the decisionmakers are, respectively, the juvenile court judge, the legislature, and the prosecutor.

Judicial waiver (the juvenile court judge)

All States have established legal mechanisms whereby some juveniles may be prosecuted within the criminal justice system.

In judicial waivers, a hearing is held in juvenile court, typically in response to the prosecutor’s request that the juvenile court judge “waive” the juvenile court’s jurisdiction over the matter and transfer the juvenile to criminal court for trial in the “adult” system. Most State statutes limit judicial waiver by age and offense criteria and by “lack of amenability to treatment” criteria (Snyder and Sickmund, 1999; Griffin, Torbet, and Szymanski, 1998). States often limit waiver to older youth or to youth who have committed certain serious offenses. Amenability determinations are typically based on a juvenile’s offense history and previous dispositional outcomes but may also include psychological assessments. Under many State statutes, a court making an amenability determination must also consider the availability of dispositional alternatives for treating the juvenile, the time available for sanctions (for older juveniles), public safety, and the best interests of the child.

Judicial waiver provisions vary in the degree of flexibility they allow the court in decisionmaking. Some provisions make the waiver decision entirely discretionary. Others establish a presumption in favor of waiver or specify circumstances under which waiver is mandatory.

Regardless of the degree of flexibility accorded to the court, the waiver process must adhere to certain constitutional principles of fairness. The U.S. Supreme Court, in Kent v. United States (1966), held that juvenile courts must provide “the essentials of due process” when transferring juveniles to criminal court. In 1996, approximately 10,000 cases—or 1.6 percent of all formally processed delinquency cases disposed in juvenile courts that year—were judicially waived to criminal court (Stahl et al., 1999).

Statutory exclusion (the legislature)

In a growing number of States, legislatures have statutorily excluded certain young offenders from juvenile court jurisdiction based on age and/or offense criteria. Perhaps the broadest such exclusion occurs in States that have defined the upper age of juvenile court jurisdiction as 15 or 16 and thus excluded large numbers of youth under age 18 from the juvenile justice system. NCJJ has estimated that (assuming such age-excluded youth are referred to criminal court at rates similar to those at which their juvenile counterparts are referred to juvenile court) as many as 218,000 cases involving youth under age 18 were tried in criminal court in 1996 as a result of State laws that defined them as adults solely on the basis of age (Snyder and Sickmund, 1999; Griffin, Torbet, and Szymanski, 1998). Whether juvenile and criminal court referral rates are in fact similar is not known. If they are not, or if the most minor incidents referred to juvenile court are never prosecuted in criminal court, the estimated number of age-excluded youth would be lower.

Kent v. United States, 383 U.S. 541 (1966)

Procedural Background

In 1961, while on probation from an earlier case, 16-year-old Morris A. Kent, Jr., was arrested and charged with housebreaking, rape, and robbery. Kent confessed to the offenses and offered information on several similar incidents. Anticipating that the District of Columbia Juvenile Court would consider waiving its jurisdiction over Kent and remitting him for trial to the criminal system, Kent’s attorney filed motions requesting a hearing on the issue of jurisdiction and seeking access to the juvenile court’s social services file on Kent. The juvenile court judge did not rule on this motion. Instead, he entered an order stating that the juvenile court was waiving jurisdiction over Kent after making a “full investigation.” The judge did not describe the investigation or the grounds for the waiver.

When Kent was indicted in criminal court, Kent’s lawyer moved to dismiss the criminal indictment, arguing that the juvenile court’s waiver had been invalid. That motion was overruled, and Kent was subsequently tried in criminal court and found guilty on six counts of housebreaking and robbery. He was sentenced to 30 to 90 years in prison.

On appeal, Kent’s attorney again challenged the validity of the waiver. Appellate courts, however, rejected the appeal, refused to scrutinize the juvenile court judge’s “investigation,” and accepted the waiver as valid. In appealing to the U.S. Supreme Court, Kent’s attorney argued that the judge had not made a complete investigation and that Kent had been denied his constitutional rights simply because he was a minor.

U.S. Supreme Court’s Decision

The U.S. Supreme Court ruled the juvenile court order waiving jurisdiction invalid, holding that Kent’s counsel should have had access to all records involved in the waiver decision and that the judge should have provided a written statement of the reasons for waiver. The Court also held that waiver hearings do not need to conform to all the formal requirements of a criminal trial, but that they must measure up to “the essentials of due process and fair treatment.” In particular, the Court held that juveniles facing waiver are entitled to:

  • Representation by counsel.
  • Access to social services records.
  • A written statement of the reasons for waiver.

Kent Waiver Criteria

In an appendix to its opinion, the Court in Kent detailed the following “criteria and principles concerning waiver of jurisdiction”:

An offense falling within the statutory limitations . . . will be waived if it has prosecutive merit and if it is heinous or of an aggravated character, or—even though less serious—if it represents a pattern of repeated offenses which indicate that the juvenile may be beyond rehabilitation under Juvenile Court procedures, or if the public needs the protection afforded by such action.

The determinative factors which will be considered by the Judge in deciding whether the Juvenile Court’s jurisdiction over such offenses will be waived are the following:

  1. The seriousness of the alleged offense to the community and whether the protection of the community requires waiver.

  2. Whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner.

  3. Whether the alleged offense was against persons or against property, greater weight being given to offenses against persons especially if personal injury resulted.

  4. The prosecutive merit of the complaint, i.e., whether there is evidence upon which a Grand Jury may be expected to return an indictment (to be determined by consultation with the [prosecuting attorney]).

  5. 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 in [criminal court].

  6. The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation, emotional attitude, and pattern of living.

  7. The record and previous history of the juvenile, including previous contacts with [social service agencies], other law enforcement agencies, juvenile courts and other jurisdictions, prior periods of probation to [the court], or prior commitments to juvenile institutions.

  8. The prospects for adequate protection of the public and the like-lihood 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.

Many States also exclude certain individuals charged with serious offenses from juvenile court jurisdiction. Such exclusions are typically limited to older youth. The offenses most often targeted for exclusion are capital and other murders and violent offenses; however, an increasing number of States are excluding additional felony offenses. No national data exist on the number or characteristics of cases excluded by statute from juvenile court jurisdiction.

Concurrent jurisdiction (the prosecutor)

Under this transfer option, State statutes give prosecutors the discretion to file certain cases in either juvenile or criminal court because original jurisdiction is shared by both courts. State concurrent jurisdiction provisions, like other transfer provisions, typically are limited by age and offense criteria (Snyder and Sickmund, 1999; Griffin, Torbet, and Szymanski, 1998).

State concurrent jurisdiction provisions, like other transfer provisions, typically are limited by age and offense criteria

Prosecutorial transfer, unlike judicial waiver, is not subject to judicial review and is not required to meet the due process requirements established in Kent. According to some State appellate courts, prosecutorial transfer is an “executive function” equivalent to routine charging decisions. Some States, however, have developed guidelines for prosecutors to follow in “direct filing” cases. No national data exist on the number or characteristics of the cases that prosecutors exclude or have the discretion to exclude from juvenile court jurisdiction.

State legislation delineates the conditions under which individuals charged with a violation of the law (and whose age places them under the original jurisdiction of the juvenile court) may or must be processed in the adult criminal system. Historically, the majority of States have relied on judicial waiver as the mechanism for transferring juveniles to criminal court (Feld, 1987; Snyder and Hutzler, 1981). For many years, all States except Nebraska, New York, and, more recently, New Mexico have had statutory provisions that allow juvenile court judges to waive the juvenile court’s jurisdiction over certain cases and transfer them to criminal court for prosecution (Snyder and Sickmund, 1999; Griffin, Torbet, and Szymanski, 1998). Statutory exclusion and concurrent jurisdiction provisions have been relatively less common, but the number of States in which these options exist is growing. Between the 1992 and 1997 legislative sessions, 45 States expanded their statutory provisions governing the transfer of juveniles to criminal court. Generally, States have done so by adding statutory exclusion provisions, lowering minimum ages, adding eligible offenses, or making judicial waiver presumptive. As of the end of 1997, legislatures in 28 States had statutorily excluded from juvenile court jurisdiction cases involving certain offenses and certain age youth, and, in 15 States, prosecutors had the discretion to file certain cases in criminal court.

Nearly all States rely on a combination of transfer provisions to move juveniles to the criminal system. As of the end of 1997, the most common combination (18 States) was judicial waiver together with statutory exclusion (Snyder and Sickmund, 1999; Griffin, Torbet, and Szymanski, 1998). Relying on judicial waiver alone was the second most common transfer arrangement (16 States). Tables summarizing the 1997 transfer criteria in each State and demonstrating statutory variations across States appear in appendix A.

Prior research on transfer

Nearly all States rely on a combination of transfer provisions to move juveniles to the criminal system.

Research on transfers in the 1970’s through the middle 1980’s documented court practice regarding the transfer of juveniles to criminal court. Studies found that although transfer to criminal court was intended for the most serious juvenile offenders, many transferred juveniles were not violent offenders, but repeat property offenders (Howell, 1996; Feld, 1987; Snyder and Sickmund, 1995; Nimick, Szymanski, and Snyder, 1986). In addition, studies found that transferred youth often were handled more leniently in criminal court than they would have been in juvenile court—arguably because they were appearing in criminal court for the first time at a relatively young age and with a relatively short offending history. For example, a 1978 national survey by Hamparian and colleagues (1982) found that the majority of juvenile transfers convicted in criminal court received sentences of probation, fines, or other alternatives to incarceration. Forty-six percent of cases judicially waived and 39 percent of those filed directly in criminal court by prosecutors resulted in incarceration. Research by Bortner (1986) found that 6 out of 10 judicially waived offenders received probation as their primary disposition, compared with 3 out of 10 who received sentences of incarceration.

Other studies, by contrast, have found that criminal courts were more likely than juvenile courts to incarcerate offenders. Fagan (1991), for example, compared juvenile and criminal court handling in 1981 and 1982 of 15- and 16-year-old felony offenders in similar counties in New York (where they are excluded from juvenile court) and New Jersey (where they are not). The study found that criminal court sanctions in New York were twice as likely to include incarceration as juvenile court sanctions in New Jersey. In a followup study of more recent cases (1986–87), however, Fagan (1995) found the reverse (at least for robbery cases).

Researchers have also explored sentence lengths for those incarcerated. Rudman and colleagues (1986), for instance, studied case outcomes of violent youth considered for transfer in urban jurisdictions by comparing outcomes for those transferred with outcomes for those whose transfer was denied. The study found that criminal court sentences were longer than juvenile court sentences. Fagan’s (1991) research on sentences imposed by juvenile and criminal courts in felony burglary or robbery cases, on the other hand, found no differences in sentence lengths.

It remains uncertain what case characteristics trigger a decision to transfer.

Recidivism rates of juveniles transferred to criminal court and juveniles retained in juvenile court have also been compared to assess the ultimate impact of transfer. For example, Fagan’s 1991 analysis of felony burglary and robbery cases found that the likelihood of rearrest and reincarceration, as described earlier, did not differ among youth charged with burglary. Among juveniles charged with robbery, however, those handled in juvenile court in New Jersey were significantly less likely to be rearrested and reincarcerated than those handled in criminal court in New York. Of those who recidivated, the length of time before rearrest was significantly longer for those who remained in juvenile court.

Research by Bishop and Frazier and their associates compared case outcomes for nearly 3,000 juveniles transferred to criminal court in Florida with outcomes for a comparison group of juveniles retained in juvenile court. The groups were matched along several dimensions, including offense, age, race, sex, and prior offenses. The 1-year followup study (Bishop et al., 1996) found that transferred youth had a higher rate of rearrest, were rearrested for more serious offenses, and were rearrested within a shorter time than youth retained in juvenile court. After nearly 6 years, the juveniles who had not been transferred had caught up with the transferred youth in terms of the proportion who had been rearrested (Winner et al., 1997). However, transferred youth who were rearrested were rearrested more quickly and more times, on average, than the comparison group of delinquents handled in juvenile court. Only transferred youth charged with felony property crimes (many of whom had substance abuse problems) were found less likely to be rearrested than their juvenile court counterparts—although, if arrested, transferred youth were rearrested more quickly and more often than their juvenile court counterparts.

The difficulty with much of the research concerning the effect of transfer is that observed differences in case handling and outcomes may result from differences in the seriousness of the cases ultimately handled in juvenile and criminal courts. The underlying assumption is that transfer is reserved for the most serious cases. Because the very rationale for transfer is to allow courts to impose potentially harsher penalties on the most serious juvenile offenders, one would expect cases handled in criminal court to be more serious than those remaining in juvenile court. However, with numerous studies finding large proportions of relatively less serious cases (e.g., property cases) among transferred cases, it remains uncertain what case characteristics trigger a decision to transfer. If, in fact, transferred cases are more serious than cases remaining in juvenile court, one would expect the sanctions imposed in criminal court to be harsher than those imposed in apparently similar cases in juvenile court. Furthermore, one might also expect transferred offenders to be more likely to reoffend.

Researchers have yet to examine recidivism in a study fully controlling for case and offender seriousness. Even research that has attempted to study comparable groups (matched samples, for example) of transfers and delinquents retained in juvenile court has not been able to control for many of the factors that might make the transfers a more serious group. Thus, it remains unclear whether the reason harsher sanctions are more likely and reoffending is higher among transfers is because these juveniles are more serious offenders. The studies presented in this Summary add to the research literature and improve the understanding of the differences between cases transferred to criminal court and “similar” cases retained in juvenile court.

Site selection

The project included four research studies in three States: Pennsylvania, South Carolina, and Utah.

The project included four research studies in three States: Pennsylvania, South Carolina, and Utah. These sites were chosen because they have historically relied on judicial waiver as their primary transfer mechanism. In addition, in 1996, Pennsylvania enacted an exclusion provision targeting older, violent juveniles that provided an opportunity to study transfer decisionmaking in the criminal justice system.

Method overview

As those who have attempted to conduct research on transfers are well aware, the data collection process in transfer studies presents many unique and, at times, insurmountable hurdles. The difficulty in these efforts rests on the fact that transfer cases touch so many distinct components of the justice system. To track transferred cases through the justice system completely, researchers must extract information from the records of law enforcement, juvenile courts, juvenile detention centers, probation agencies, criminal courts, adult jails, and State police repositories. For the four research studies described in this Summary, the project developed a form to facilitate consistent definitions and data collection across jurisdictions (see appendix B). However, available data were often incomplete or incompatible across systems. More specifically, case records at times did not contain key data about the circumstances of the criminal incident (e.g., weapon presence or use, gang involvement, level of victim injury, relative criminal responsibility of offender, relationship of victim and offender). This type of information is found in the narrative of police and probation reports, the contents of which are not standardized, varying from author to author and, even more, from jurisdiction to jurisdiction. It is also not uncommon to find juvenile court records of cases transferred to criminal court for which there is no corresponding criminal court record or to find transferred cases that were never completed in criminal court because the offenders were parties in other cases that resulted in criminal court sanctions. These transferred cases, in other words, were essentially ignored.

In each of the three States, the basic data collection strategy consisted of extracting information from automated juvenile court records and then supplementing those data with information gleaned from automated records from the criminal court, prosecutor’s office, or law enforcement. If automated records did not contain the desired information, researchers culled through paper files.

Research questions

The studies in this project asked three basic research questions:

  • What criteria are used in the transfer decision?

  • Did the transfer decisionmaking criteria change during the 1980’s and 1990’s over and above changes in legislation?

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

Although no single jurisdiction generated data that addressed all three questions, each question was addressed by data from one or more sites. Each question is described below.

What criteria are used in the transfer decision?

Other than the general seriousness of an offense, what characteristics make a case more likely to result in transfer?

Although there is a general sense that transfer should be reserved for the most serious juvenile cases, numerous studies have shown that a significant proportion of transfers seem to fall outside that category, calling into question the decisionmaking of the juvenile court judges and/or prosecutors who control transfer decisions. Other than the general seriousness of an offense, what characteristics make a case more likely to result in transfer? For example, does the likelihood of transfer vary with the seriousness of a victim’s injury, the use of weapons (especially firearms), the presence of gang motivation in the underlying incident, or a juvenile’s history of substance abuse or prior offending? Are there interactions between these characteristics? Data from South Carolina and Utah on cases in which a waiver request was made were used to address these questions. South Carolina provided data on more cases than Utah, but the Utah data included more detail on each waiver incident.

Did the transfer decisionmaking criteria change during the 1980’s and 1990’s over and above changes in legislation?

In the past several years, many States have passed legislation that makes it easier to transfer juveniles to criminal court. Has there been any change, however, in the nature of transferred cases and/or decision criteria in jurisdictions where transfer provisions did not change? In other words, did the transfer process change even where there was no change in State statutes?

Data used to answer this question were drawn primarily from Pennsylvania. Researchers compared waivers in Pennsylvania during 1986 with waivers in the State during 1994 (a period during which there were no changes in transfer legislation). The 1986 data were originally collected for a study published by the Pennsylvania Juvenile Court Judges Commission that described the more than 200 cases judicially waived to criminal court in Pennsylvania in 1986 (Lemmon, Sontheimer, and Saylor, 1991). Comparable 1994 data were collected as part of the current project. In addition, even though South Carolina and Utah waived far fewer cases each year, data from these States were analyzed to test for historical changes in transfer criteria.

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

Of those States that have passed laws that make it easier to try juveniles in criminal court, the most common change was the enactment or expansion of statutory exclusion provisions. Legislatures responded to public outcry regarding “failures” of the juvenile justice system and proposed exclusion as at least a partial solution. The phrase “Do the adult crime, do the adult time” became a cliche. The efficacy of exclusion provisions, however, was not well established. Were more or different juveniles tried in the criminal system in jurisdictions that had enacted new statutory exclusion provisions? Did excluded juveniles receive harsher sanctions under new exclusion provisions than they would have received under prior judicial waiver provisions? Data on cases excluded in Pennsylvania during 1996—under the State’s new exclusion provisions—were used to address this question.

1 The term “transfer” refers to three general mechanisms. However, only one mechanism (judicial waiver) actually involves the transfer of a juvenile from the juvenile court to the criminal court. Cases that follow the other two paths may never pass through the juvenile court system.

Juvenile Transfers to Criminal Court in the 1990's:
Lessons Learned From Four Studies
August 2000