Juveniles in the Adult System

From the juvenile court's inception, judges could deny some young offenders its protective jurisdiction and transfer them to adult courts. Judicial waiver reflects juvenile courts' traditional offender-oriented approach to decide whether to treat a youth as a juvenile or to punish him as an adult. In Kent v. United States (1966), the U.S. Supreme Court required juvenile court judges to conduct a formal waiver hearing and to provide some procedural protections. Subsequently, in Breed v. Jones (1975), the Court applied the double jeopardy clause of the fifth amendment to delinquency convictions and required states to decide whether to try and sentence a youth as a juvenile or as an adult before proceeding to trial on the merits of the charge.

Kent and Breed provided the formal procedural framework within which judges make waiver sentencing decisions. But the substantive bases of waiver decisions pose the principal difficulty. Most states' waiver statutes allow judges to transfer jurisdiction based on their assessment of a youth's "amenability to treatment." The Court in Kent, for example, appended to its opinion a list of substantive criteria that juvenile court judges might consider. States' judicial decisions and waiver statutes specify "amenability" criteria with varying degrees of precision and frequently incorporate the list of Kent factors. Although some states limit judicial waiver to felony offenses and establish a minimum age for adult prosecution, other states provide neither offense nor minimum age restrictions.

In practice, judges appear to assess a youth's amenability to treatment and dangerousness by focusing on three sets of variables. The first consists of a youth's age and the length of time remaining within juvenile court jurisdiction. Juvenile court judges waive older youths more readily than younger offenders. A youth's age in relation to the maximum dispositional jurisdiction limits juvenile courts' sanctioning powers and provides the impetus to waive older juveniles if the seriousness of the offense deserves a much longer sentence than a juvenile court can impose. A second constellation of "amenability" factors include a youth's treatment prognosis as reflected in clinical evaluations and prior correctional interventions. Once a youth exhausts available juvenile correctional resources, transfer becomes increasingly more likely. Finally, judges assess a youth's dangerousness based on the seriousness of the present offense, whether the youth used a weapon, and the length of the prior record. Balancing dangerousness factors entails a trade-off between offense seriousness and offender persistence.

Judicial waiver criteria framed in terms of amenability to treatment or dangerousness give judges broad discretion. Long lists of factors, such as those appended in Kent, do not provide judges with adequate guidance, serve to reinforce their discretion, and allow them selectively to emphasize one variable or another to justify any decision. The subjective nature of waiver decisions, the absence of effective guidelines, and the lack of objective indicators or scientific tools with which to classify youths allows judges to make unequal and disparate rulings. Empirical evaluations provide compelling evidence that judges apply waiver statutes in an arbitrary, capricious, and even discriminatory manner. Different states' rates of judicial waiver for similar offenders vary considerably. Even within a single jurisdiction, judges do not interpret or apply waiver statutes consistently from county to county or from court to court. Research in several states report a contextual pattern of "justice by geography"—where youths lived, rather than what they did, determined their juvenile or adult status. Even within a single urban county, various judges in the same court decide cases of similarly situated offenders differently. A youth's race also affects waiver decisions. Studies consistently report that judges transfer minority juveniles at a higher rate than they do similarly situated white offenders. Differences in judicial philosophies, the locale of a waiver hearing, or a youth's race explain as much of the variance in transfer decisions as do a youth's offense or personal characteristics. Because assessments of "amenability" are so indeterminate, appellate courts give enormous deference to juvenile court judges' discretionary decisions.