Journal Issue: Juvenile Justice Volume 18 Number 2 Fall 2008
Statutory Architecture of Juvenile Transfer
In the midst of the 1978 New York gubernatorial election, a fifteen-year-old named Willie Bosket shot three strangers on a New York City subway platform.10 The horrific murder evoked a fierce legislative response. The traditionally shorter sentences in the juvenile court for dangerous young men like Willie became the focus of widespread outrage and, quickly, political action. New York legislators promptly passed the Juvenile Offender Law,11 which lowered the age of majority for murder to thirteen and to fourteen for other major felonies. The new law signaled a broad attack on the structure and independence of the juvenile court, a major restructuring of the border between juvenile and criminal court that was repeated across the nation in recurring cycles for more than two decades.
Current Boundary-Drawing Regimes
At its birth, the Juvenile Offender Law was, and remains today, the nation's toughest law on juvenile crime. New York State was already tough on juvenile crime, one of three states in the nation where the age of majority was sixteen.12 Two years earlier, it had passed the Predicate Felony Law, a measure that mandated minimum terms of confinement for serious juvenile offenders in juvenile corrections facilities.13 Determinacy in sentencing—that is, introducing certainty both in sentence length and in conditions— was nothing new for adults, but this law was the first of its kind for juveniles.14 But the JO Law, as it came to be known, trumped the Predicate Felony Law in ways that signaled the trend that was to come.
First, the legislative branch itself assumed transfer authority by excluding entire categories of juvenile offenders and offenses from the jurisdiction of the family court and removing them to the criminal court.15 The lawmakers could simply have curtailed the discretion of family court judges, but the JO Law foreclosed any role for them. One reading of the law, then, was as an attack on the family court and its deep adherence to the principles of individualized justice and "best interests of the child." The JO Law not only stripped transfer authority from family court judges, but also devolved it to police and prosecutors, whose unreviewable decisions about charging young offenders often determined whether cases met the thresholds that would trigger a transfer.16
Second, the new law based the transfer decision solely on age and offense. It accorded no weight to culpability, mitigation, or any other individual factor, including either therapeutic needs or prior record. It assumed that all youth in these age-offense categories were both sufficiently culpable as to merit criminal justice sanctions and likely to continue their criminal behavior regardless of any interventions provided for them in juvenile corrections. In effect, the legislators made an actuarial group prediction of future dangerousness.
Third, the new law made sentences for Juvenile Offenders, the label applied to juveniles whose cases were removed by the law, long enough to require trans-correctional placements— placements that began in juvenile settings and continued into the adult corrections system. Thus the law not only mandated transfers but made them routine, a move that affected large numbers of younger offenders who were sentenced to lengthy prison terms despite the absence of a prior record.
In the next two decades, every state in the nation passed legislation to ease and expand the prosecution of juveniles in adult courts.17 The watershed year was 1995, when seventeen states expanded eligibility for transfer.18 Most states supplanted or eclipsed the traditional system of judicial transfer from the juvenile court using one or more of the mechanisms built into the design of the JO Law. Still other laws created a new statutory authority to transfer not court jurisdiction but correctional jurisdiction, and ceded that authority to a forum that is more administrative than adjudicative.19 Some states maintained the structure and primacy of judicial waiver, but increased the number of youth being waived by mandating that waiver be considered for some offense and offender categories and shifting the burden of proof from the prosecution to the defense to show why the accused should not be transferred to the criminal court.
Given its scope and reach, the expansion of transfer for juvenile offenders was a massive social and legal experiment that fundamentally transformed the borders and boundaries of the juvenile justice system. The experiment evolved and strengthened over time: once passed, laws often were re-crafted in recurring legislative sessions to further expand the scope of laws to transfer or remove youth to criminal court at lower ages and for more offenses. As I show below, the experiment took on several unique forms.
Mechanisms for Juvenile Transfer
Table 1 arrays the states on each of the mechanisms of juvenile transfer in effect as of 2004. Judicial waiver, statutory exclusion, direct file, and blended sentencing are the mechanisms used to transfer juvenile offenders to adult court.
Judicial waiver. Judicial waiver to criminal court is the most common transfer mechanism: forty-seven states and the District of Columbia provide judicial discretion to waive certain juveniles to criminal court. Table 2 shows the age and offense thresholds of waiver eligibility for each state. Historically, judicial waiver decisions were made following a motion by prosecutors. Evidence was presented and argued, and a decision was made. In 1966, in Kent v. U.S.,20 the Supreme Court articulated both procedural and substantive standards to regulate judicial waiver decisions. Though only advisory in the original Kent case, the Kent guidelines quickly were adopted into law in most states.
Since 1978, judicial waiver criteria and procedures have been redesigned in many states to increase the likelihood of waiver. Some states created a presumption of waiver for specific offenses or offenders, based on age, offense, or prior record. Presumptive waiver shifts the burden of proof from the state to the juvenile to show that he or she should not be transferred. Other states mandate waiver for specific categories of offenses and offenders, often to ensure sentencing terms that can take place only in the criminal court.
Statutory exclusion. Statutory exclusions, like New York's JO Law, relocate entire categories of youth defined by age or offense criteria, or both, to the criminal court. More than half of the states have statutes that exclude some adolescent offenders from the juvenile court. Table 3 shows the age and offense threshold for statutory exclusion in each of those states. In addition to devolving transfer authority to prosecutors and police, these statutes also moot Kent by rendering a legislative judgment about the future behavior and malleability of excluded youth. Exclusions vary from specific offenses, as in New York, to any felony offense at the age of seventeen, as in Mississippi.
Concurrent jurisdiction and direct file. Concurrent jurisdiction gives prosecutors the option and discretion to file cases directly in adult court. Fifteen states have created concurrent juvenile and criminal court jurisdiction for specific categories of offenses and offenders, permitting prosecutors to elect the judicial forum for the adjudica tion and sentencing of the young offender. Table 4 shows the combinations of offense and age criteria that trigger eligibility for concurrent jurisdiction in each state. A quick glance shows that these statutes are targeted primarily at violent crimes. Most states with concurrent jurisdiction make youth eligible at age fourteen, though others have either lower or higher age thresholds for specific crimes.
Blended sentencing. Seventeen states give the criminal court the power to impose contingent criminal sanctions for juveniles convicted of certain serious crimes; fifteen states permit juvenile courts to do the same; many give the power to either court. These statutes, known as blended sentencing statutes or extended jurisdiction statutes, identify a specific group of juveniles—based on age, offense, and prior record—whose sentences have separate juvenile and adult components that are linked through a contingent process to determine whether the extended (criminal) punishment will be carried out.21 Typically, the adult component is imposed only if the youth violates the provisions of the juvenile portion or commits a new offense. The conditions in the juvenile phase may be narrowly tailored (for example, avoiding subsequent crime) or vague and subjective (for example, making satisfactory "progress" in treatment). Table 5 shows the offense and age criteria for blended sentencing in the states with such provisions. Two states, Vermont and Kansas, permit blended sentences for any offense for youth beginning at age ten. Many other states have no minimum age for one or more of the eligible offense categories.
Although intended to ameliorate the consequences of transfer and waiver, blended sentencing in practice has raised several issues. First is net widening. In Minnesota, for example, blended sentences did not reduce the number of waivers; instead, they were given to youth who in the past were sentenced within the juvenile system.22 Second, the decision to activate the adult portion of the transitional sentence often lacks procedural safeguards and at times lacks accountability. States vary on whether the decision is judicial or administrative, as well as on the evidence necessary to trigger the adult portion of the sentence, on the standard of proof, on whether youth can contest or rebut the evidence against them, on whether they are entitled to representation, and on whether the decision is reviewable. Given the length and conditions of the adult portion of the sentence, a more formal, standardized, and constitutionally sound procedure would be appropriate and consistent with the principles of Gault and McKiever.
Competing Instincts and Second Thoughts
The complexity of state laws, the piecemeal character of the statutory landscape, and the fact that most states have overlapping transfer mechanisms suggests some ambivalence about the instincts to get tough by imposing criminal sanctions on adolescents. Certainly, a state that really wanted to crack down on juveniles could simply lower its age of majority. Yet throughout this thirty-year interval of increasingly tougher sanctions for adolescent offenders, only two states—Wisconsin and New Hampshire—have done so, lowering the age of majority from seventeen to sixteen.23 Between 1989 and 1995, five states abolished the juvenile death penalty, far more than the number of states that lowered the age of majority in the same period.24 And one state—Connecticut—recently raised its age of majority from sixteen to eighteen.
Instead, the states have criminalized delinquency incrementally and in pieces, stopping short of the more obvious and expedient step of lowering the age of majority. The current statutory landscape is full of trapdoors and loopholes that allow some youth—no one knows exactly how many—to escape the reach of the criminal law and its harsher punishments. Legislators appear ambivalent, refusing to completely abandon the principles of juvenile justice, yet seeking to divide delinquents into two categories: those worthy of the remedial and therapeutic interventions of the juvenile court and those who can be abandoned to the punitive regime of criminal justice in the name of retribution and public safety.
Two collateral provisions of the new transfer mechanisms illustrate these competing instincts about adolescence, youth crime, and juvenile justice. Viewed together, they suggest an ambivalent political and social culture on how tough to get with adolescent criminals. The first provision is reverse waiver, the return of transferred cases back to the juvenile court. Reverse waiver is a retail corrective mechanism, designed to detect errors in attributing full culpability or overlooking evidence of amenability to treatment. Twenty-four states permit reverse waiver once cases have been initiated in the criminal courts, including twenty-one of the states with direct file (or prosecutorial waiver) statutes.25 In some states with statutory exclusion, such as Pennsylvania, these decertification hearings are routine.26 In New York City, nearly one-third of youth excluded by statute from family court are returned there by the adult court.27 Cases can be returned to the juvenile court either for adjudication and sentencing or only for sentencing within its statutory authority.
The opposite instinct is evident in the thirty-one states that have enacted "once waived, always waived" legislation. In these states, juveniles who have been waived to adult court and convicted subsequently must be charged in criminal court regardless of the offense. For example, in Virginia, any juvenile previously convicted as an adult is forever excluded from juvenile court jurisdiction. In California, any youth whose case is waived to criminal court qualifies for permanent waiver, regardless of whether he or she is convicted in the first waived case. Permanent waiver can be invoked in ten states, and must be invoked in twelve others, if the offender previously has been adjudicated delinquent.
Thus, the punitive and child-saver instincts for youth crime co-exist uneasily in the current statutory environment, forcing a binary choice between criminal and juvenile court jurisdiction, a choice that is not well suited to reconcile these tensions.
The Enduring Importance of Maturity and Development in Juvenile Justice
What, then, do twenty-five years of transfer activism signal about legal and popular notions of the culpability and maturity of adolescents and about the place of developmental considerations in juvenile justice? The political discourse and legal mobilization that animated the criminalization push beginning in the 1970s was ambiguous about maturity. From the outside, legal academics read the movement as a sign that legislators assumed that young offenders have reached a developmental threshold of criminal responsibility that makes them fully culpable for their crimes.28 Indeed, even the Kent regulations confused "sophistication of the crime" with "maturity" and culpability. Critics of the juvenile court argued that proportionality and the concerns of victims should trump the "best interests of the child." Some argued that proportionality was necessary to maintain the legitimacy of the juvenile court.29 Others recommended a proportionality regime in the interests of fairness and consistency, deemphasizing but not discarding the notions of immaturity and diminished culpability of adolescents.30 Public safety concerns also loomed large, with proponents wishing to draw hard lines to determine when longer, incapacitating punishments were needed to protect citizens. Still other critics of the juvenile court preferred the deterrent effects of criminal court punishment over a regime of individualized justice. The notion of immaturity as a culpability discount was set aside or standardized in a complex heuristic of when and for whom transfer is necessary.
Accordingly, the transfer activism of the past two decades did not affirmatively or uniformly reject the notion of developmental immaturity and diminished culpability of youth. In many instances, it merely reserved it for less serious or visible offenders. Functionally, though not explicitly, transfer activism assumes that adolescents are no different from adults in the capacities that comprise maturity and hence culpability. It also assumes that adolescents have the same competencies as adults to understand and meaningfully participate in criminal proceedings. In the absence of good social and behavioral science, legislators were free to make those assumptions.
But as Elizabeth Scott and Laurence Steinberg show in their article in this volume, there are good reasons now to doubt these claims.31 For example, in Roper v. Simmons,32 the 2005 U.S. Supreme Court decision banning execution of adolescents younger than eighteen who commit capital murder, the Court took notice that juveniles are less culpable because they are "more vulnerable and susceptible to negative peer influences and outside pressures, including peer pressure,"33 and are "comparatively immature, reckless and irresponsible."34 The sum of these developmental gaps between adolescents and adults, according to the Roper majority, ". . . means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character."35
The Roper court drew both from social science research and from "anatomically-based" evidence of "concrete differences" between juveniles and adults showing that "critical developmental changes in key brain regions occur only after late adolescence."36 So behavioral science and natural science are nearly perfectly aligned to show that "the average adolescent cannot be expected to act with the same control or foresight as a mature adult."37
The new science of juvenile culpability runs counter to the patterns in transfer law. In transfer law, the downward ratcheting of the age at which youth are exposed to adult punishment is sharply at odds with evidence that full maturity in culpability and blameworthiness comes later than eighteen, not earlier. The recent push to lower the age threshold for treating juvenile offenders as adults assumes that they are sufficiently mature to be held culpable for their crimes, that any deficits in their maturity are minor compared with the harm they have done, and that unless punished harshly, they are likely to offend again. The new scientific evidence on developmentally constrained choices suggests that the law has been moving in the wrong direction.38
The new developmental and neuropsychological research has strong implications for laws that funnel adolescents wholesale into the adult courts. The new evidence casts reasonable doubt on statutes that sweep all fourteen-, fifteen-, or sixteen-year-old offenders into the criminal justice system. Some adolescent offenders may have reached a threshold of maturity by age sixteen consistent with the legal conceptions of maturity-culpability, but many others have not. In legal regimes that assume maturity where it simply does not exist, the new evidence on immaturity, both in the capacities that comprise culpability and the brain functions that launch them, argues persuasively against transfer to the criminal court.
The alternative to wholesale transfer is to rely on case-by-case assessments, much as the early juvenile courts did in deciding which youth were so incorrigible as to warrant expulsion from the juvenile court. Yet given the limitations of prediction, one might worry about the accuracy of such assessments.39 Developmental variability means that the younger the line for eligibility for criminal punishment is drawn, the greater the risk of error.40 So, for example, the new science should raise strong cautions about laws that draw the line at age twelve or younger. One can hardly expect legislators, prosecutors, and judges to systematically and accurately make these complex judgments for young adolescents.41 Getting it wrong has serious costs. Waiver to adult court is not exactly a death sentence, but it often is irreversible and has serious consequences, as I show next, both for adolescents and for public safety. While the law moves toward waiving increasingly younger teens into criminal court, social and biological evidence suggests moving in the other direction.