Juveniles being tried as adults in the criminal justice system

¶ … Juveniles as Adults

When a juvenile offender commits a serious crime, one of the first issues that a prosecutor needs to decide is where to try the offender: the juvenile court system or the adult court system. If the circumstances of the offense and the offender's criminal history merit it, a prosecutor can seek a waiver, which means that the juvenile is tried in adult court, rather than in the juvenile justice system. Most people think that this is done only when the circumstances of the crime are especially heinous. However, prosecutors and judges take far more things into consideration when determining whether to ask for or grant a waiver. They examine the totality of the offense, the offender's likely dangerousness, and the offender's criminal history when determining which track of the criminal justice system is appropriate for dealing with the offense. Offenders who are not seen as good candidates for rehabilitation are then transferred out of the juvenile justice system and tried as adults.

For society, the decision to grant a waiver can be a very good thing, because it does not allow dangerous offenders to hide behind their status as juveniles and then be released to commit future crimes. However, for the individual offender, the decision has the potential to be a very bad thing, since children may not fare very well in the adult criminal justice system. This paper will explore the waiver of children into the adult criminal justice system, weight the advantages and disadvantages for both the offender and society, and determine whether or not the practice is a beneficial one

Specialized Purpose of the Juvenile Justice System

While trying a defendant who has committed a serious offense in the adult criminal justice system may seem appropriate based on the crime, it is important to keep in mind that the juvenile justice system developed separately from the adult criminal justice system for a reason. A "separate juvenile justice system was established in the United States about 100 years ago with the goal of diverting youthful offenders from the destructive punishments of criminal courts and encouraging rehabilitation based on the individual juvenile's needs. This system was to differ from adult or criminal court in a number of ways. It was to focus on the child or adolescent as a person in need of assistance, not on the act that brought him or her before the court" (McCord et al., 2001, p.154).

This was a significant transformation from the earlier approach to criminal justice, which treated even the youngest offenders like criminals. By focusing on the offender as a person in need of aid, rather than primarily as a criminal, the juvenile justice system set itself apart from the adult criminal justice system. The theory was that appropriate intervention by the court could lead to rehabilitation for the offender. The idea of rehabilitation meant that the courts made special efforts to protect the offender's privacy from the public. "Juvenile court proceedings were closed to the public and juvenile records were to remain confidential so as not to interfere with the child's or adolescent's ability to be rehabilitated and reintegrated into society" (McCord et al., 2001, p.154).

The differences in juvenile court meant that juvenile offenders were often treated more leniently than adults charged with the same crimes. In fact, "The very language used in juvenile court underscored these differences. Juveniles are not charged with crimes, but rather with delinquencies; they are not found guilty, but rather are adjudicated delinquent; they are not sent to prison, but to training school or reformatory" (McCord et al., 2001, p.154). However, these differences would not always work in favor of a juvenile offender. On the contrary, the leniency of the juvenile court system often came at a high price for young offenders. Judges were charged with acting in the best interests of the child, which meant that the proceedings were not necessarily adversarial. Therefore, the constitutional protections afforded a defendant in the adult criminal justice system were not always respected in the juvenile justice system (McCord et al., 2001, p.154). The lack of meaningful constitutional protections gave judges a substantial amount of power and limited the right of the offenders to seek judicial review of the decisions that they faced in delinquency adjudications.

Advantages of the Juvenile Justice System

Despite the potential lack of constitutional protections, it is important to keep in mind that the juvenile justice system offers several advantages for the offender. Perhaps the most important of those advantages is the fact that the juvenile justice system is non-adversarial; the lack of constitutional protections may be seen as a disadvantage, but it is also an advantage. This is because the juvenile defendants are cast in the role of juveniles in need of assistance, not simply as offenders in need of punishment. As a result, the primary goal of the juvenile system is rehabilitation. The problem with this goal is that rehabilitation is not always possible. It is commonly noted that offenders placed into the juvenile system do not get better, but simply learn how to be better criminals. Unfortunately, in many situations, that is the case. Therefore, what is an advantage for juveniles can be a tremendous disadvantage for the public. This is an important point, because whether or not waiver is an appropriate choice cannot be determined solely by how waiver impacts the juveniles who face the adult criminal justice system, but also by the benefit or detriment to society.

Another advantage of the juvenile justice system for the offender is that the impact of the long-term incarceration of juveniles is something that is not very well understood. The juvenile justice system has sentence limits and offenders age out of the system, regardless of the crime committed. However, the very crimes that result in waiver to the adult system are the same crimes that are likely to carry extremely large potential sentences. This has two impacts: the impact on the juvenile offenders and the legal interactions between the criminal justice system and the offenders. More research is needed to understand both the legal decision-making at the back end of waiver and the way that long-term incarceration impacts juveniles (Singer, 2003, p.126-7). Therefore, the juvenile justice system must be considered better until more evidence is discovered.

In addition to advantages for the offender, the juvenile justice system might also offer advantages for society. Three components are believed to enhance the deterrence ability of a criminal justice sentence: certainty, severity, and swiftness of punishment (Jordan & Myers, 2011, p.248). The empirical evidence suggests that the juvenile court system actually processes criminal cases more rapidly than the adult criminal court system, which gives it an advantage in the area of swiftness (Jordan & Myers, 2011, p. 266). Therefore, the juvenile justice system is better able to accomplish at least one goal of deterrence than the adult criminal justice system. Moreover, the juvenile justice system may not have the same sentence severity as the adult criminal justice system, but offenders in the juvenile system are more likely to serve longer portions of their sentence, so that the severity of the actual punishment may not differ from system to system (Jordan & Myers, 2011, p, 264).

Advantages of the Adult Justice System

The adult justice system has some advantages that cannot be ignored, which is why people seek waiver for juveniles into the adult justice system. Interestingly enough, there are advantages for offenders in addition to advantages for society when a juvenile is tried in the adult justice system. In order to transfer a defendant to the adult justice system, the underlying offense will generally be very serious and, thus, carry the possibility for a lengthy sentence. It is more difficult to obtain a conviction in the adult criminal justice system because of the requirement that the state prove the offense beyond a reasonable doubt, heightened rules of evidence, and even the ability to get a jury trial. Therefore, an offender may actually be better-situated in the adult justice system.

Moreover, society may benefit when certain juveniles are tried in the adult justice system. The reality is that increasing numbers of juvenile offenders are committing serious and violent offenses that make them a danger, not just to the public at large, but also to other juvenile offenders who might be incarcerated in the juvenile justice system. The biggest benefit of the adult justice system is that it provides the potential for longer sentences than the juvenile justice system. Therefore, it has the potential for protecting the public from violent criminals, regardless of age. The fact that criminals may not serve their entire sentences is not a condemnation of the adult justice system's response to juvenile offenders, but actually a condemnation of the overall criminal justice system.

The Waiver Process

In most states, there is an established procedure for transferring cases out of the juvenile justice system and into the regular court system. The most common way to initiate the transfer proceedings is for the prosecutor to request a transfer. However, the prosecutor is not the only person who can seek a transfer. Juvenile court judges can also begin transfer proceedings (Michon, 2012). Furthermore, in some states there are automatic transfer laws, which require that juveniles over a certain age be tried as adults when they commit specific crimes, usually violent crimes like rape or murder. In states without automatic transfer laws, the defendant is entitled to a hearing prior to being transferred. At this hearing, which is known as the waiver hearing, fitness hearing, or certification hearing, the prosecutor has to show probable cause that the defendant committed the crime (Michon, 2012).

Establishing probable cause is only the first step in the waiver process. Once probable cause is established, it becomes the court's duty to determine whether the juvenile is likely to be rehabilitated. This is the most difficult part of the determination because it involves predicting the future behavior of a defendant. To determine this, the court looks at the defendant's background, criminal history, and willingness to enter into treatment (Michon, 2012). If the judge determines that the defendant is not likely to be rehabilitated, then he transfers the case to the adult criminal justice system. Once in the adult system, the case re-starts, and the defendant faces the entire adult criminal justice process.

The waiver procedure varies slightly in states with automatic transfer laws. There, unless a defendant objects, defendants who are of a certain age and have committed specified crimes are automatically transferred to the adult criminal justice system. "Juveniles subject to an automatic transfer can still request a transfer hearing in juvenile court. During that hearing -- called a reverse waiver or reverse transfer hearing -- the juvenile (through an attorney) has the burden of convincing the judge to reverse the automatic transfer and allow the juvenile to be tried in juvenile court" (Michon, 2012).

Why Some Cases are Removed

What types of cases prompt the prosecutor or the judge to seek removal? What types of offenses are considered so heinous that they would trigger a state's automatic removal statute? For the most part, cases are removed from the juvenile justice system to the adult justice system based on the facts of the underlying offense. Generally, an offender must commit a violent offense in order to be removed to the adult criminal justice system. The two offenses that most commonly trigger removal are sexual assault and homicide. However, it is important to realize that while those crimes are the ones most likely to trigger removal to the adult criminal justice system, it is certainly possible for an offender to be removed to the adult court system without committing one of those crimes, as long as the underlying crime is considered of sufficient severity.

While the crime committed plays a role in the waiver decision, what is interesting to note is that removal is not necessarily predicated on the facts of the crime charged. This becomes even clearer when examining the decertification process, whereby juvenile offenders seek to be transferred back into the juvenile justice system in states where certain crimes trigger automatic removal to the adult criminal justice system. Whether offenders are decertified does not seem dependent upon the circumstances of the crime, but rather on the legal factors surrounding the question (Jordan & Myers, 2007, p.188). What this suggests is that the factors underlying removal decisions may be more important to the court than the circumstances of the actual criminal offense. Therefore, it is clear that waiver is not an arbitrary process, but the result of a reasoned analysis of, not just the crime a defendant has committed, but also of what is known about the defendant.

Concerns about Trying Juveniles as Adults

Although there may be compelling reasons to try juveniles as adults, some people have real reservations about treating children as if they are adults. Many of them suggest that because children are neurologically different than adults, they should not be treated like adults in the criminal context. In fact, there are humanitarian concerns about the prosecution of children. The reality is that juveniles face greater jeopardy in the adult court system than they would in the juvenile justice system. First, the adult court system offers the possibility of longer sentences, up to and including life imprisonment. Second, the adult court system has very few sentencing options; generally a defendant can be punished or released, while there are far greater opportunities in the juvenile justice system. Juveniles who are convicted in the adult system may serve time in the adult prison system, which may expose them to tremendous dangers. There is a greater stigma attached to criminal convictions than delinquency adjudications, and juvenile records are sealed, while adult criminal records are not (Michon, 2012).

All of these reasons suggest that society use caution when trying children as adults. However, it is critical to realize that waiver statutes do not argue against the use of caution. Even in states with automatic waiver procedures provide opportunities for defendants to seek reverse waiver and bring their cases before the juvenile court. Juveniles who face the adult criminal justice system actually get two opportunities to seek leniency, something that adult offenders cannot access in the same manner.

Arguments in Favor of Trying Juveniles as Adults

Perhaps the most salient argument in favor of trying juveniles as adults is that there is public support for the process. Just as juvenile courts did not emerge in a vacuum, the process of trying juveniles is not developing in a vacuum. Public opinions and perceptions about juveniles are informing how the public believes that juvenile offenders should be treated. Currently, people want courts to have the ability to transfer certain offenders out of the juvenile justice system. This is not something that people want for all cases. Instead, research suggests that, "people want transfer used sparingly and selectively and that support is greatest when they believe that the adult system can provide effective rehabilitation as well as punishment" (Applegate et al., 2009, p.51). However, there is clearly support for the notion that some offenders have taken actions that should place them outside of the protective realm of the juvenile justice system and into the adversarial realm of the adult criminal justice system. The reality is that kids are getting more frightening.

Many people believe that the primary purpose of obtaining a juvenile waiver is to ensure that juveniles receive longer sentences. This is generally the case, as juveniles tried in the adult system are generally sentenced to longer periods of time than juveniles tried in the juvenile justice system (Fristsch et al., 1996, p.593). However, when one examines time-served, juvenile offenders who are tried as adults may actually serve less time than those tried as juveniles because of the greater ability to sentence reductions and early release in the adult system (Fristsch et al., 1996, p.593). Moreover, there does not seem to be a real difference in how the adult systems and juvenile systems treat offenders, when one examines the two systems on legal and case processing factors (Kupchik, 2006, p.335). As a result, some would argue that there is no purpose in trying a juvenile as an adult. However, that viewpoint is naive. There is a qualitative difference in serving a prison term in an adult facility that separates the punishment from detention in a juvenile justice facility, not simply a quantitative difference in the length of the sentences offenders are likely to receive in the different components of the criminal justice system.