Keywords: Transferring of Juveniles, Waiver, Bindover, Removal, Certifying, Prosecutor Discretion

Since about the mid-nineteen eighties there has been a trend to transfer repeat youth offenders and youth offenders who commit serious crimes to adult courts. In 1987, alone ten thousand juveniles were waived into an adult court. Only until 1994, did we see the beginning of a decrease for the waiving of juvenile court for juveniles. One big reason for this drop off is the reluctance of prosecutors and judges to transfer juveniles held on drug charges and crimes against public order. The vast majority of juveniles waived into adult courts, today, are the ones who commit crimes against the person and property. This continues to be a controversial issue between politicians, judges, and the entire legal community as a whole. One thing is for certain concerning juveniles and that is the fact that transferring will continue in the United States of America. All fifty states have statutes that allow for this kind of transfer.

In today's court system there are three very distinct ways in which a state allows for a juvenile to be tried as an adult. The first process is called a judicial waiver. In this procedure, also known as binding over or certifying, the juvenile is taken before a juvenile court judge, who then has the responsibility of deciding whether or not jurisdiction should be waived and if the case should be transferred to criminal court. The second process is referred to as a direct file. In this procedure, also known as concurrent jurisdiction or prosecutor discretion, prosecutors have the discretion to prosecute juveniles either in juvenile court or criminal court. This procedure is probably the most popular among legislators because the decision remains simply with the prosecutor. He or she has the sole responsibility of deciding if a youth offender needs to be sent to an adult court. This process is used in fifteen states at the time being. The final process is called excluded offenses. In this procedure the state sets aside certain offenses that are automatically excluded from a juvenile court. These offenses can be minor ones, but most of them deal with serious offenses, such as rape, arson, and murder. Statutory excluded offenses account for the largest majority of juveniles tried as adults (Siegel, 2003, p.431). This is by no means a new process; juveniles have been tried as adults in some states as long as seventy years.

There have been two landmark cases concerning the due process of juveniles. Both of these cases had drastic effects on the way our juvenile courts deal with our juvenile delinquents. The first major case was Kent v. United States 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). In this case the defendant Morris A. Kent, Jr. was taken into custody for the alleged robbery and rape of a woman in the District of Columbia. The police had taken fingerprints at the crime site and they matched the defendants, which were on record because of a previous conviction. The police then question the fourteen-year-old for seven hours, in which he admitted to not only that rape and robbery, but also numerous others. The next day his mother hired a lawyer who filed several motions on behalf of his client. The judge however denied the motions without saying anything. He didn't even hold a hearing. Kent's attorney then appealed to the Court of Appeals where he was once again denied. Finally, he got a chance to argue his case before the Supreme Court and they ruled in his favor. The court declared that Washington D.C. statute for transferring juveniles was unconstitutional and that he must be provided the same due process rights as an adult. These include the right to have a lawyer present during questioning and access to the evidence that would be used in the case (Feld, 2000, p.421-422). The second landmark case was Breed v. Jones. In this case the defendant, who was seventeen at the time, was accused of committing acts while holding a gun that would be a crime if he was an adult. The adjudicatory hearing was held and in that hearing the court held that he was in fact a juvenile. Then a second hearing was held in which the court held that the defendant was unfit for treatment as a juvenile. Afterwards, his counsel immediately filed for a writ of habeas corpus. The Appeals Court denied his claim. Then Supreme Court then took his case because of a conflict between the Courts of Appeals and the highest courts of a number of states pertaining to this very topic. In their decision the Supreme Court decided that the defendant was to be abridged the protection of the double jeopardy clause of the Fifth Amendment, since he had been tried first as a delinquent in juvenile court. Once found to be a delinquent, one cannot be tried as an adult.

These two cases had a dramatic result on the way juvenile delinquents were handled. First, the court must provide a legitimate transfer hearing for delinquents. The court also had to give sufficient notice to the child, his family, and his legal counsel before a transfer hearing. The courts now had to respect a juvenile's right to have counsel not only at the hearing, but also during questioning. Finally, the courts had to start giving a statement of the reason for the court order regarding transfers. These new rights now emphasized the importance of a transfer hearing in establishing the delinquent's statutory rights.

Even with these new holdings, the juvenile judge is still solely responsible for the outcome of transfers in many states. They are to use discretionary assessment of subjective factors to decide if a delinquent is dangerous and the amenability of treatment.

Juvenile judges consider this amenability of treatment in three essential ways. First, he is to look at the juvenile's age and the amount of time the delinquent has remaining within the juvenile court jurisdiction. It has been proven that juvenile judges tend to waive more of the older youths than they do the younger ones. There are two reasons for this trend. The younger youth is usually not held as responsible as the older one and the younger one still has more time for a treatment to be effective. The second consideration a juvenile judge looks at is how well the juvenile has done in the different treatments revealed in clinical evaluations and by prior correctional interventions. If the juvenile has not done well in several treatments he or she is more likely to be transferred to an adult court. The final consideration a juvenile judge looks at is the dangerousness or the threat of the delinquent. This leaves the judge a very broad range of discretion in deciding to transfer a juvenile to a criminal court.

This is probably the most talked about issue in Juvenile Justice. There are great arguments for both sides. Some experts will say that it does not benefit society or the system. The majority of delinquents transferred to adult courts get probation or a small sentence because it is their first appearance in criminal court. Also, they will claim that it takes away from the purpose of a juvenile court, and that is to rehabilitate the delinquents instead of punishing them. Then for the juveniles, who are convicted of a crime, they are labeled as a criminal from then on out. That label makes it harder for them to get a real job and become a productive citizen. Other experts will argue that the transfer waiver is a great tool for the Juvenile Courts, because it shows a get-tough attitude on crime. They believe that if we start sending sixteen-year-olds to the pen that it will discourage their peers to avoid those crimes. They also make a valid point in that some juveniles are too dangerous to be held in the juvenile detention centers, such as children that commit the most heinous crimes, such as matricide and patricide. There are several examples of children who have committed horrid crimes in the last few years. The Menendez brothers, for example, slaughtered their parents while they were sleeping. Then there is the recent rash of school shootings throughout the country, such as Jonesboro, Arkansas where five students were fatally gunned down, or the shootings at Columbine in Colorado that left several students fatally wounded.

This opens up the door for an even more controversial topic. Should a jury be able to impose the death penalty for someone under the age of eighteen? Many people argue that executing a minor definitely falls under the realm of cruel and unusual punishment. However, others will argue that if you can transfer a sixteen-year-old to adult court for murdering his entire family, why can't you impose the death penalty for him. With the recent rash of cruel shootings by minors across the country, this will for sure be highly debated for many years.

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Feld, Barry C. (2000). Cases and Materials on Juvenile Justice Administration. St. Paul, Minnesota: West Group.

Howell, James C. (1997). Juvenile Justice and Youth Violence. Thousand Oaks, California: Sage Publications.

McCuen, Gary E. (1997). The Death Penalty and the Disadvantaged. Hudson, Wisconsin: Gary McCuen Publications.

Neubauer, David W. (1997). Judicial Process: Law, Courts, and Politics in the United States. Orlando, Florida: Harcourt Brace and Company.

Siegel, Larry J. Welsh, Brandon C. and Senna, Joseph J. (2003). Juvenile Delinquency: Theory, Practice, and Law. Canada: Thompson Learning, Inc.

Woodson, Robert L. (1981). Youth Crime and Urban Policy: A View from the Inner City. Washington D.C. American Enterprise Institute.

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