Waiver, or transfer, to adult court refers to the various legal mechanisms through which juvenile offenders can have their cases moved from juvenile court jurisdiction to criminal courts. There are several types of waiver laws and they differ from state to state. Once transferred to adult courts, young defendants are prosecuted as if they were adults, often facing sentences similar to adults, lifetime public records, and in some states, incarceration in adult prisons or jails. Recent decades have seen a marked increase in the use of transfer across the states.
During the 1980s and 1990s nearly all states passed laws expanding the scope of their waiver laws, making the practice much more common, with more and younger adolescents facing criminal prosecution for an increasing list of offenses, including more nonviolent offenses. Numerous studies conducted since this net-widening have found that waiver has not reduced rates of recidivism among transferred youth. In fact, reoffending rates of transferred youth have often been found to be higher than those of similar youth processed in juvenile systems.
Juvenile courts were originally modeled upon the belief that most of the young people who entered them were changeable and amenable to treatment. Thus, those few youth deemed incorrigible were thought to be more appropriately handled in adult criminal courts, where they could receive punishment in proportion to the seriousness of their crimes the same way adults would. Traditionally, in the earlier decades of juvenile courts, transfer was used sparingly and was generally reserved for particularly heinous offenses or for chronic repeat offenders not well suited to the rehabilitation-focused style of justice found in juvenile courts.
There are three basic categories of transfer laws that states can adopt: Judicial waiver provisions (discretionary, presumptive or mandatory) put the decision-making power to transfer cases in the hands of juvenile court judges; prosecutorial waiver provisions (also known as direct file) leave transfer decisions up to prosecutors; and statutory exclusion laws require that cases automatically be sent to adult court if certain criteria are met.
A discretionary judicial waiver law puts most of the discretion in the hands of the juvenile court judge. Such a provision authorizes, but does not require, a juvenile court judge to transfer a case to adult criminal court under specific circumstances (type of offense, prior arrests or adjudications in the juvenile court, age, or a combination of these). Under a presumptive judicial waiver law the juvenile bears the burden of proof as to why the case should not be transferred to criminal court. If this burden is not met, the case will be sent to adult court. Mandatory judicial waiver laws require a juvenile court judge to transfer a case to adult court if certain criteria are met. Under such provisions the judge has little discretion. His or her only role is to hold a hearing in order to determine if the specific transfer criteria have been met. Although the amount of discretion differs in each type, judicial waivers involve a waiver hearing in the juvenile court to determine if transfer is appropriate and if the necessary criteria are met. These decisions are subject to appeal.
In contrast to judicially based transfer provisions, some states have prosecutorial waiver or statutory exclusion laws that take the transfer decision making power out of the hands of the juvenile courts. Under prosecutorial waiver (or direct file) provisions the decision to transfer, within certain parameters, is put in the hands of the prosecutor. Under statutory exclusion laws transfer is mandated by legislation for a certain set of circumstances, generally the nature of the charge and the age of the offender. Under such laws, qualifying juveniles are automatically sent to criminal court—in effect, their cases originate in criminal court. Under both prosecutorial waiver and statutory exclusion laws there is no juvenile court transfer hearing and these decisions, unlike judicial decisions, cannot be appealed. For decades the favored transfer mechanisms across the states were discretionary judicial waivers. During the 1990s there was a marked shift in the method of transfer legislated, with more and more states adopting prosecutorial discretion and statutory exclusion laws.
The different legal mechanisms and criteria used to determine transfer can be complicated and differ considerably from state to state. Some states have transfer laws reliant solely on age, while others focus on both age and the nature of the alleged offense. Some states use only one type of transfer law, while other states use a complex, and often confusing, combination of some, or all of them. For example, Hawai‘i has a simple discretionary judicial waiver law. California, on the other hand, utilizes judicial waivers, prosecutorial waivers, and statutory exclusion, depending on the age of the juvenile and the nature of the alleged offense.
It is difficult to know with any real accuracy the number of juvenile cases transferred to adult courts across the various legal mechanisms. The Office of Juvenile Justice and Delinquency Prevention (OJJDP) periodically reports statistics on the number of delinquency cases transferred to criminal courts nationally. These statistics, however, only include cases transferred via judicial waiver mechanisms. To date, there is no comprehensive national data collection on the numbers of juveniles transferred via prosecutorial waiver and statutory exclusion laws.
The increased use of transfer, especially automatic transfer, raises a number of ethical legal questions. First is the question of whether adolescents have adequate competency to stand trial in adult criminal courts. Given the developmental immaturity of adolescents, legal scholars question how well transferred youth can fully understand the legal processes they are a part of and if they are sufficiently able to consult and cooperate with counsel. Second, researchers question transferred youths’ ability to make sound legal decisions, especially given their present-time orientation and reduced ability to fully comprehend long-term consequences.
In addition, although every state has different rules, almost half of transferred youth across the country are detained or incarcerated in adult facilities, where they are more likely to be subject to abuse and are less likely to receive rehabilitative services. Youth in adult facilities also often face inadequate or inappropriate education and mental health resources.
- Griffin, Patrick, Sean Addie, Benjamin Adams, and Kathy Firestine. “Trying Juveniles as Adults: An Analysis of State Transfer Laws and Reporting.” Juvenile Offenders and Victims: National Report Series Bulletin (September 2011). https://www.ncjrs.gov/pdffiles1/ojjdp/232434.pdf (Accessed September 2013).
- Grisso, Thomas, et al. “Juveniles’ Competence to Stand Trial: A Comparison of Adolescents and Adults’ Capacities as Trial Defendants.” Law and Human Behavior, v.27/4 (August 2003).
- Redding, Richard E. “Juvenile Transfer Laws: An Effective Deterrent to Delinquency?” Juvenile Justice Bulletin. (June 2010). https://www.ncjrs.gov/pdffiles1/ojjdp/220595.pdf (Accessed September 2013).
- Sellers, Brian G. and Bruce A. Arrigo. “Adolescent Transfer, Developmental Maturity, and Adjudicative Competence: An Ethical and Justice Policy Inquiry.” Journal of Criminal Law and Criminology, v.99/2 (Spring 2009).
- Zimring, Franklin and Jeffrey Fagan, eds. The Changing Borders of Juvenile Justice: Transfer of Adolescents to the Criminal Court. Chicago: University of Chicago Press, 2000.
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