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Transfer of Juveniles to Adult Court: Effects of a Broad Policy in One Court
By Edward P. Mulvey and Carol A. Schubert, U.S. Department of Justice Office of Justice Programs Office of Juvenile Justice and Delinquency Prevention
Published: 12/10/2012

Teenager Transferring an adolescent offender to adult court is a weighty decision. It has far-reaching implications for the adolescent involved and significant symbolic meaning for the justice system. For the adolescent, transfer to the adult system holds the possibility of harsher punishment (including physical, sexual, or psychological victimization by other inmates) and enduring developmental costs (Chung, Little, and Steinberg, 2005; Mulvey and Schubert, 2012). For the system, transferring an adolescent to adult court is an unambiguous statement that the criminal justice system will no longer shelter the adolescent, by virtue of his or her acts, from harsh justice. Transfer to adult court indicates that the demand for proportional punishment has trumped the goal of individualized rehabilitation found in the juvenile justice system (Zimring, 2005).

Since the court’s inception, juvenile justice policymakers and professionals have wrestled with the decision about when to transfer an adolescent to adult court (Tanenhaus, 2004). Currently, individual states have combinations of statutorily defined mechanisms for determining when the movement of a juvenile case to adult court is required or appropriate, including procedures such as judicial transfer, certification, automatic waiver, or direct file (Griffin, 2003; Fagan and Zimring, 2000). In general, state statutes define a set of crimes for adolescent offenders of a certain age that warrant processing in the adult system (i.e., a statutory exclusion from the presumed jurisdiction of the juvenile court). Most states also have a mechanism (e.g., decertification, reverse waiver) for returning the case to the jurisdiction of the juvenile court when deemed appropriate. (See Sickmund, 1994; Griffin, 2006; and Redding, 2008, for an elaboration of these statutory provisions.)

Statutory standards have not always driven the process of transferring an adolescent to adult court. For most of the history of the juvenile court, the decision to transfer an adolescent offender to the adult court rested primarily on the discretion of the juvenile court judge. Since the inception of the juvenile court in 1899, transfer was possible for a range of “heinous” offenses when the juvenile court judge deemed that the resources available to the court were insufficient to rehabilitate an adolescent (Tanenhaus, 2000).

During the late 1980s and early 1990s, however, a sharp rise in violent crime produced intense interest in the causes of juvenile crime and the effectiveness of the juvenile justice system. Juvenile arrests for violent offenses jumped dramatically during this time period, increasing 64 percent nationally between 1980 and 1994 (Butts and Travis, 2002). In addition, some highly publicized cases of juveniles committing repeated, serious violent offenses contributed to public perception that the juvenile justice system was inadequate to intervene effectively with adolescents who were a legitimate threat to public safety (Butterfield, 1995). These forces even prompted radical, and ultimately unfounded, rhetoric about a coming wave of adolescent “superpredators” unlike any previous juvenile offenders in their heartlessness and lack of response to interventions (DiIulio, 1995).

In this context, the public began to distrust the ability of the juvenile justice system to ensure public safety, and state legislatures added statutory provisions to ensure that youth who committed certain serious offenses were not roaming the streets. Between 1992 and 1999, all but one state expanded legislation that made it easier for juveniles to be tried as adults (Hansen, 2001). These changes increased the set of crimes that qualified an adolescent for transfer, lifted age restrictions, and added statutory exclusion and prosecutorial discretion as methods for achieving transfer to adult court. The movement of adolescents to adult court was no longer the product of a juvenile court judge exercising his or her discretion; it was instead largely the product of who fell into the statutorily defined net of eligibility and was not waived back to juvenile court. Rather than relying on a judgment of individual appropriateness regarding transfer, the emphasis was instead on the act, not the actor, and on retribution, not rehabilitation (Griffin, 2006).

Effects of Changes in Transfer Policies on Practice

It is generally believed that these statutory reforms produced an increase in the rate of transfer, at least in a large number of locales (Fagan, 2008; Penney and Moretti, 2005). However, it is difficult to gauge the specific effects of these changes because of the lack of comprehensive and consistent data about transferred adolescent offenders. No systematic national count of the number of youth who are transferred or waived to criminal court exists, nor are there consistent data on the characteristics of these adolescents across locales. The National Center for Juvenile Justice tracks judicial transfers made at the discretion of juvenile court judges. These figures show a clear decline in adolescent transfers using this mechanism, presumably because other statutory mechanisms have increased their rate of transfer (Adams and Addie, 2010). However, no accurate tallies of the total number of transfers across all possible mechanisms exists.

The sources for estimating the number of adolescents in adult prisons or jails on any given day or during any given period of time are also inconsistent (Woolard et al., 2005). According to available data, the number and proportion of adolescents in adult prisons appear to have peaked in the mid-1990s (about 5,000 prisoners, or 2.3 percent of the total prison population, according to Hartney, 2006) and to have fallen since then to less than 3,000, or 1.2 percent, in 2004 (Hartney, 2006; see Austin, Johnson, and Gregoriou, 2000, for somewhat larger estimates for the mid-1990s). Estimates of the number of adolescents in adult jails on any given day are considerably greater, ranging from about 7,000 (Hartney, 2006) to 19,000 (Austin, Johnson, and Gregoriou, 2000)—about 1 in 10 youth incarcerated in the United States are admitted to an adult prison or jail (Eggleston, 2007).

In addition, little is actually known about outcomes for adolescent offenders who are transferred to the adult system. The Bureau of Justice Statistics (BJS) funded a recent study to compile available information about the number of adolescents who were transferred across a range of locales and the subsequent sanctions these individuals received. Study results are anticipated in 2012 and are expected to be “the best national estimates ever, and the most detailed exploration of who the kids are and what actually happens to them” (Kelly, 2010, p. 31).

Despite the lack of definitive numeric estimates, it is reasonable to assume that the changes in transfer statutes have led to an increase in the heterogeneity of the youth sent to adult court in many locales (Schubert et al., 2010). That is, expansions of the transfer statutes and an increased reliance on the presenting offense have made it easier for the adult court to process a broader range of adolescents; these adolescents likely differ widely in their prior legal involvement, developmental status (because there is now a wider age span for youth who are eligible for transfer), and specific risk factors related to offending. In general, researchers believe that the group of adolescents now transferred to adult court includes “a broad range of offenders who are neither particularly serious nor particularly chronic” (Bishop and Frazier, 2000, p. 265).

Reconsideration of the Current Transfer Policy

The wisdom of current transfer policies has been widely questioned, and some have begun to voice two major concerns about the potential impacts of these practices (Fagan and Zimring, 2000; Redding, 2008). The first concern is about fairness: Does placement in adult court expose adolescents to punishments and conditions that are unduly harsh? The second concern is about utility: Does the practice of juvenile transfer to adult court actually reduce crime as compared with placement in juvenile court?

Excerpt reprinted from Office of Juvenile Justice and Delinquency Prevention Bulletin

Click here for the complete Juvenile Justice Bulletin


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