Juveniles in the Adult System - Judicial Waiver And Individualized Sentencing, Legislative Offense Exclusion And Prosecutors' Choice Of Forum, Youth Crime And "get Tough" Politics

Jurisdictional waiver constitutes a type of sentencing decision. Transfer of juvenile offenders for adult prosecution provides the nexus between the more deterministic and rehabilitative premises of the juvenile court and the free will and punishment assumptions of the adult criminal justice system. Mechanisms to prosecute some juveniles as adults provide a safety valve that permit the expiatory sacrifice of some youths, quiet political and public clamor about serious youth crime, and enable legislators to avoid otherwise irresistible pressures to lower further the maximum age of juvenile court jurisdiction. Waiver laws attempt to resolve fundamental crime control issues, reconcile the conflicted impulses engendered when the child is a criminal and the criminal is a child, and harmonize cultural contradictions between adolescent immaturity and criminal responsibility.

Since the mid-1980s, public frustration with crime, fear of youth violence, and the racial characteristics of violent young offenders have fueled a desire to "get tough" and provided political impetus to prosecute larger numbers of youths as adults. Some of these initiatives simplify transfer of young offenders to criminal courts by expediting judicial waiver, by excluding certain categories of offenses from juvenile court jurisdiction, or by allowing prosecutors directly to charge youths as adults. The offense exclusion and "direct file" approaches de-emphasize rehabilitation and individualized consideration of the offender, and instead stress youth's age and offenses, personal and justice system accountability, and punishment.

Every jurisdiction uses one or more statutory approaches to prosecute some juveniles as adults. Although technical and administrative details of states' transfer laws vary considerably, judicial waiver, legislative offense exclusion, and prosecutorial choice of forum represent the three generic approaches. They represent different ways to identify which serious young offenders to try as adults, emphasize a different balance of sentencing policy values, rely upon different organizational actors or administrative processes, and elicit different information to determine whether to try and sentence particular young offenders as adults or as children. These strategies allocate to different branches of government—judicial, executive, or legislative—the decision whether to try a youth as a criminal or as a delinquent.

Judicial waiver represents the most common transfer strategy. A juvenile court judge may waive jurisdiction on a discretionary basis after conducting a hearing to determine whether a youth is "amenable to treatment" or poses a threat to the public. These assessments reflect the traditional individualized sentencing discretion characteristic of juvenile courts.

Legislative offense exclusion frequently supplements judicial waiver provisions. This approach emphasizes the seriousness of the offense and reflects the retributive values of the criminal law. Because legislatures create juvenile courts, they freely can define their jurisdiction to exclude youths from juvenile court based on their age and offenses. A number of states, for example, exclude youths sixteen or older and charged with first-degree murder from juvenile court jurisdiction. Legislative line-drawing that sets the maximum age of juvenile court jurisdiction at fifteen or sixteen years of age, below the general eighteen-year-old age of majority, results in the criminal prosecution of the largest numbers of chronological juveniles.

Prosecutorial waiver or "direct file" constitutes the third method by which about ten states remove some young offenders from the juvenile justice system. With this strategy, juvenile and criminal courts share concurrent jurisdiction over certain ages and offenses, typically older youths and serious crimes, and a prosecutor decides in which forum to try the case.

Each type of waiver strategy has supporters and critics. Proponents of judicial waiver endorse juvenile courts' rehabilitative philosophy and argue that individualized decisions provide an appropriate balance of flexibility and severity. Critics object that judges lack valid or reliable clinical tools with which to accurately assess amenability to treatment or predict dangerousness, and that their exercises of standardless discretion results in abuses and inequalities. Proponents of offense exclusion favor just deserts sentencing policies, advocate sanctions based on relatively objective factors such as offense seriousness and criminal history, and value consistency, uniformity, and equality in the handling of similarly situated offenders. Critics question whether legislators can remove discretion without making the process rigid and over-inclusive, or simply delegating sentencing discretion to prosecutors who manipulate their charging decisions. Proponents of prosecutorial waiver claim that prosecutors can act as more neutral, balanced and objective gatekeepers than either "soft" judges or "get tough" legislators. Critics observe that prosecutors succumb to political pressures, exercise their discretion just as subjectively as do judges, and introduce extensive geographic variability into the justice process.