Juveniles in the Adult System

In order to restore some flexibility to a prosecutor-dominated waiver process and to allow for appropriate dispositions of some "amenable" younger offenders, many states allow judges to "reverse waive" or "transfer back" to juvenile court cases that originated in criminal court either as a result of excluded offense or prosecutorial direct file decisions. About half of the prosecutor direct file and excluded offense jurisdictions allow a criminal court judge either to return a youth to juvenile court for trial or sentencing, or to impose a juvenile or youthful offender sentence in lieu of an adult criminal sentence. In some states, offense exclusion or direct file laws that place a youth initially in criminal court create a presumption of unfitness and shift the burden of proof to the juvenile to demonstrate why he should be returned to juvenile court for trial or disposition. In other excluded offense jurisdictions, the prosecutor may make a "reverse waiver" decision. In most states, however, a criminal court judge makes the "transfer back" decision to sentence a youth as a juvenile under provisions that recreate Kent-style proceedings. An evaluation of reverse waiver decisions reported that criminal court judges transferred back significantly more younger offenders, those who had fewer prior convictions and less previous exposure to juvenile correctional services, and those whom clinicians identified as "amenable to treatment." These reverse waiver findings correspond to comparable research on juvenile court waiver decisions, which report that judges typically transferred older youths, those with prior juvenile correctional experiences, and those whom clinicians deemed "unamenable to treatment." In short, the limited evidence on reverse waiver suggest that it closely replicates juvenile court judicial waiver.