Journal of the Institute

Deborah L. Johnson, Debra E. Banister, and Michelle L. Alm^*

Conducting research in the area of juvenile transfer to the adult criminal court leads to a plethora of literature on the topic. Within the literature are a number of debates regarding the transfer process and the treatment of young, violent offenders. One debate concerns the punitive approach of the juvenile justice system, rather than the rehabilitative ideal. A second debate is in regard to the psychological development of the youth. This leads to a third debate concerning the culpability of the offender. A fourth debate is in relation to the changing methods of juvenile transfer from the primary use of judicial waiver to the increased use of statutory exclusion and concurrent jurisdiction due to legislative changes. These issues have lead to an ultimate debate of whether the juvenile justice system should continue to exist or if there should be one system to handle both juvenile and adult offenders.

The purpose of this paper is to explore the issue of juvenile transfer to the adult criminal court. Part one will utilize the available literature base to examine concerns within the juvenile transfer process, as well as the methods of juvenile transfer. Part two will briefly review theoretical approaches used to evaluate trends in the juvenile to adult court process with particular focus on the informed consent model. Part three will outline the current research endeavor to explore the juvenile to adult transfer process both at the national level and the local Kansas City level. The research process includes singling out Jackson County, Missouri from the other 39 counties in the sample, to determine if Jackson County's characteristics are similar to the national sample of juvenile offenders. In addition, the hypothesis that the number of youths transferred varies depending on the type or types of waiver utilized by the county will be tested. Finally, part four will provide outcome information regarding the current research study, as well as future implications for the transfer process.

Part One: The Literature
Rehabilitative Versus Punitive Approach

American youth have been perpetrators of aggressive and violent crimes within numerous social settings. It has been found that as of the early 1990s, the rate of criminal violence has “reached unparallel levels” in the United States. Juvenile violence is no exception. In comparison with youth in other countries, American youth show far higher rates of violence (Tatem, Huizinga, Thornberry, and Loeber, 1997). Although it has been reported that juvenile offenses have decreased since the mid-1990s, current research regarding delinquent and violent youth behavior has recognized its magnitude as a social problem (Flowers, 2002; Foster, 2004). For example, "in 1999, police arrested about one-quarter of a million (230,800) youth age 12 and younger . . . [which] represented about 9 percent of the total number of juvenile arrestees (those up to age 18 in 1999)" (Office of Juvenile Justice and Delinquency Prevention (OJJDP), 2001:3).

We often see reports in the media of school shootings, youth gang violence, juvenile homicides, and dating violence and rape. We hear of the "super-predator" youth, which persuades the American public to believe that some teens are out of control. This image doesn't seem realistic when one considers that juvenile offenders only represent five percent of the total offense population (Austin, Johnson and Gregoriou, 2000). In 2001, the Office of Juvenile Justice and Delinquency Prevention reported, "no evidence of a new and more serious 'breed' of child delinquent and young murderer exists" (OJJDP, 2001:3). However, when one reviews the numbers of juveniles involved in criminal activity, the figures are sobering. Of the total arrests in 2000, “juveniles accounted for 9% of murder arrests, 14% of aggravated assault arrests, 33% of burglary arrests, 25% of robbery arrests, and 24% of weapon violation arrests” (Snyder, 2002:1). The following is a brief statement of the major findings reported in a study entitled, Juveniles in Adult Prisons and Jails: A National Assessment:

• 
  Approximately 107,000 youth (younger than 18) are incarcerated in adult facilities on any given day
  
• 
  Of these 107,000 youths, 14,500 are housed in adult facilities (9,100 in local jails, and 5,400 youth in adult prisons)
  
• 
  Of the 50 states and the District of Columbia, 44 house juveniles (age 17 and younger) in adult jails and prisons. Of these 44 states, 18 maintain designated youthful offender housing units. [That is 26 states that house juvenile offenders with adult offenders]
  
• 
  The actual number of youth who experience incarceration in an adult prison is actually higher than the number shown by a one-day count
  
• 
  In terms of their legal status while incarcerated, 75% were sentenced as adults (Austin, Johnson, and Gregoriou, 2000:x-xi).
  

The public response, as well as the criminal justice response, is to react with a more punitive approach. This approach became pervasive after Robert Martinson published his "Nothing Works" article in 1974, claiming treatment programs cannot rehabilitate youthful offenders (Martinson, 1974). During the 1970s and 1980s, with the change from indeterminate to determinate sentencing, the treatment focus was replaced with that of retribution and incapacitation (Van Voorhis, 2000). Ted Palmer notes that the time frame of the 1970s through the 1980s was one of a changed focus from treatment and rehabilitation to that of punishment and a “just deserts” perspective (Palmer, 1992:146).

In addition, support for a harsher stance against juvenile offenders can be attributed to the increasing media and political attention given to these crimes, which stimulate fears in the American public (Scott and Steinberg, 2003). This is exhibited by "three strikes" legislation, mandatory minimum sentencing, and transferring approaches that encourage a "once an adult, always an adult" mentality. This is revealed with statistics reporting, "between 1990 and 2000, the number of youth under 18 confined in adult prisons has more than doubled" (Austin, Johnson, and Gregoriou, 2000:iii).

Opposing this punitive approach is the position that the juvenile adjudication process offers rehabilitation and a promise of the original intent of the juvenile system, parens patriae - the government as the ultimate parent and guardian (Dicks, 1995; Ross, 1995). This approach is based on two premises. First, many delinquent acts committed by minors are due to immature judgment. Second, minors are easier to rehabilitate than adults because their character is less formed (Steinberg and Cauffman, 1996).

Psychological Development

Adolescent development is an important issue to consider when trying to determine if a youth should be adjudicated within the juvenile court system, or if the youth should be transferred to the adult criminal court. Some people have convinced themselves that it is reasonable to punish youths as young as 12 as adults. However, experts must use available information about adolescent development, both cognitive and psychosocial, in order to make these determinations (Beyer, 2000). This is because mature judgments are the product of an intersection between the two (Steinberg and Cauffman, 1996).

Recently, research has shown that the brain goes through a great amount of cognitive development during adolescence. This includes areas of the brain that have been shown to be involved with emotional control and integrating information (Beyer, 2000), as well as the development of the frontal lobe which is responsible for hypothetical thinking, logical reasoning, long-range planning, and complex decision making (Steinberg, 2003). Because of this, immature thought processes might still occur even late in adolescence (Beyer, 2000). In decision making, cognitive capacities influence the process, whereas psychosocial factors influence the outcomes (Steinberg and Scott, 2003). Therefore, even when cognitive capacities for reasoning and understanding are close to that of adults (by mid-adolescence), teens are still less skilled in using these capacities (Scott and Steinberg, 2003). Youths are more prone to making poor decisions due to psychosocial factors (Beyer, 2000; Scott and Steinberg, 2003, Steinberg and Scott 2003).

Many researchers suggest psychosocial factors lead to differences in judgment. Some of these factors are peer orientation, attitudes toward and perception of risk, temporal perspective, and capacity for self-management (Scott and Steinberg, 2003; Scott, Reppucci, and Woolard, 1995). Beyer (1999, 2000) lists several additional psychosocial factors that might influence thought processes in juveniles. Among these are youths’ inability to anticipate or plan, spontaneous reactions to perceived threats, minimizing danger, and inability to see other options.

Adolescents are distinguished from adults along two important dimensions (Scott and Steinberg, 2003). The first is in decision making ability. Decision making competence differs between adults and adolescents with adults generally making better decisions than adolescents (Halpern-Felsher and Cauffman, 2001; Scott and Steinberg, 2003; Scott, Reppucci, and Woolard, 1995; Steinberg and Scott, 2003). This is because adolescents lack psychosocial maturity (Scott and Steinberg 2003). Adults are more likely to consider different options, long-term consequences, benefits and risks associated with making a particular decision (Halpern-Felsher and Cauffman, 2001). In addition, adults are more likely to seek the advice of others (Halpern-Felsher and Cauffman, 2001; Scott, Reppucci, and Woolard, 1995).

However, in a study on the perceived consequences of risky behaviors, Beyth-Marom, Austin, Fischoff, and Jacobs-Quadrel (1993) found that, overall adults and adolescents responded similarly to questions asking for possible consequences to risky behaviors. They found small differences in that adults provided somewhat more consequences than adolescents and adolescents were more likely to mention social reactions to the decisions. The fact that adolescents named more social reactions could be attributed to the role of peer pressure in the lives of youths (Beyth-Marom, et al., 1993). Other authors claim that due to their lack of future orientation, teens are more likely to weigh the short-term consequences more heavily than the long-term consequences (Scott and Steinberg, 2003; and Scott, Reppucci, and Woolard, 1995).

The second dimension that distinguishes adults from adolescence is that during adolescent development, personal identity and character are in flux and start to develop through experimental and exploratory processes (Scott and Steinberg, 2003). Teens experience individuation and identity development. The first process involves establishing autonomy from his or her parents. The second process involves creating a coherent sense of self. Around age 15-16 youths generally separate themselves from their parents and become more focused on peers (Scott and Steinberg, 2003; Scott, Reppucci, and Woolard, 1995). This trend is also seen in a study by Fried and Reppucci which found that the youngest adolescents tended to be more similar in their views to the older adolescents, while the participants in the middle range (age 15-16) tended to exhibit the lowest levels of future orientation and resistance to peer influence (2001). It can be hypothesized that the older adolescents had a more developed identity while it is likely that the younger adolescents were imitating their parents (Fried and Reppucci, 2001). In relation to these developments, juvenile crime peaks between the ages of 15 and 16 (Moffitt, 1993).

Adolescent identity development research suggests that much of youth crime is a product of normative experimentation with rebellious and risky behaviors, and is not because of “deep-seated moral deficiency reflective of 'bad' character" (Scott and Steinberg, 2003:1015). Terrie Moffitt reports that temporary, situational antisocial behavior is common among adolescents and in fact, rates of criminal behavior are so high in adolescence that it seems to be a normal part of teen life (1993). Most of these adolescents have short criminal careers and then participate in socially acceptable behaviors upon maturation. Moffitt characterizes these individuals’ behavior as “adolescence limited anti-social behavior”. In contrast to this, a small group of people will continue to engage in anti-social behavior throughout their lifetimes. Moffitt labels this groups’ behavior as “life-course-persistent antisocial behavior” (1993).

Culpability

The developmental issues of adolescence lead to the question of their culpability, which is defined by Black's Law Dictionary as:

Blameworthiness; the quality of being culpable. Except in cases of absolute liability, criminal culpability requires a showing that the person acted purposely, knowingly, recklessly, or negligently with respect to each material element of the offense (2004:406).
Criminal responsibility refers to the amount of responsibility the offender bears for his or her behavior. Culpability refers to the level of accountability the individual has in his or her involvement in a crime, and assumes that the level of punishment he or she receives should be based upon that level of blameworthiness (Fried and Reppucci, 2001). Mitigation places the accountability and level of punishment for the offender on a continuum, which could range from the actor being completely responsible for his or her behavior to being excused for his or her behavior. In addition, proportionality claims that the amount of harm caused, as well as the actor’s culpability should determine punishment (Scott and Steinberg, 2003; Steinberg and Scott, 2003).

Culpability can be mitigated by three factors: diminished decision-making capacity, when the act was coerced, or when the act was out of character. Typically adolescents are less culpable than adults because their conduct is the result of transitional phases that characterize this stage of development (Steinberg and Scott, 2003). As discussed previously, adolescents lag behind adults in their capacity to make sound decisions and therefore should be less culpable than adults. They are also more subject to external pressures and coercion by peers. Lastly, adolescents have relatively unformed characters which means that their actions are less likely to be the result of bad character (Steinberg and Scott, 2003). One problem with mitigation in the case of adolescents is that when determining whether or not a reasonable person would act in the same manner as the offender the youths are compared with adults. Instead, the comparison should be whether or not a reasonable adolescent would have responded in the same way as the youthful offender (Steinberg and Scott, 2003).

Mechanisms of Transfer

During the times of common law, children over the age of 14 were considered adults. Children under this age were excused of all criminal responsibility; however, the presumption of no responsibility could be waived for children over the age of seven. This changed with progressive reformers who favored a more rehabilitative approach (Scott and Steinberg, 2003). These changes culminated in the implementation of a juvenile justice system in Chicago in 1899. Since the juvenile justice system's inception, there has been the option to certify juvenile offenders, in other words, transfer the youth to the adult criminal court system, via judiciary waiver (Clement, 1997; Griffin, Torbet, and Szymanski, 1998; OJJDP, 2001). Keisha David, citing work done by Dean Champion and Larry Mays, defines certification as "the process by which juvenile courts deliberately waive original jurisdiction and pass certain juveniles along to the adult system, where they will be processed and tried as adults" (David, 2000:52). Since the juvenile court began, two other mechanisms, statutory exclusion and concurrent jurisdiction, have been implemented and utilized by varying states.

Judiciary waiver is the original mechanism for transfer from the juvenile adjudication process to the criminal trial process. Under this form of transfer, a hearing must be held in juvenile court regarding the amenability of the juvenile offender. The prosecutor typically requests this hearing to have the judge waive or abstain the juvenile court's jurisdiction. The judiciary official considers statutory criteria, with respect to the evidence, to decide if the youth should be waived to the adult criminal court system (OJJDP, 2001; Sabo, 1996; Sickmund, 2003). Most states use some version of the eight factors laid out in the 1966 Kent decision. They are:

1. 
   The seriousness of the alleged offense to the community, and whether protecting the community necessitates waiver;
   
2. 
   Whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner;
   
3. 
   Whether the alleged offense was against persons or against property, greater weight being given to offenses against persons especially if personal injury resulted;
   
4. 
   The prosecutive merit of the complaint, i.e., whether there is evidence upon which a Grand Jury may be expected to return an indictment (to be determined by consultation with the United States Attorney);
   
5. 
   The desirability of trial and disposition of the entire offense in one court when the juvenile's associates in the alleged offense are adults who will be charged with a crime in the U.S. District Court for the District of Columbia;
   
6. 
   The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation, emotional attitude and pattern of living;
   
7. 
   The record and previous history of the juvenile, including previous contacts with the Youth Aid Division, or other law enforcement agencies, juvenile courts and other jurisdictions, prior periods of probation to this Court, or prior commitments to juvenile institutions; and
   
8. 
   The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile (if he is found to have committed the alleged offense) by the use of procedures, services and facilities currently available to the Juvenile Court (David, 2000:56).
   

The original intent of instituting a waiver process was the realization that some violent and chronic juvenile offenders are not amenable to treatment. For the security of the public and for accountability of the system, it was determined that some youth must be handled within the adult system. Originally, the use of judiciary waiver was minimal and only intended to be used for the most serious of cases (OJJDP, 2001).

Since the implementation of the juvenile justice system, there have been numerous legislative changes because of the increase of violent juvenile offending through the 1980s and 1990s. Beginning in 1992 and beyond, numerous states and the District of Columbia have made modifications to the transfer process to include statutory exclusion and concurrent jurisdiction (OJJDP, 2001). Statutorily excluding certain offenders from the juvenile justice system based on their age, offense criteria, or past record makes the process easier; however, the consequences for this type of transfer are considerably more rigid. Under statutory exclusion no consideration is allowed for individual circumstances such as maturity, social needs, and culpability, nor is there a transfer hearing conducted in the juvenile court (Ainsworth, 1999; Cotton, 1999).

Concurrent jurisdiction, often referred to as prosecutorial waiver or direct file, is the third mechanism through which youth are transferred to the adult criminal court. Concurrent jurisdiction refers to both the juvenile and criminal courts having original jurisdiction over a juvenile offender's case due to the age of the youth and the seriousness of the offense. In this case, the prosecutor has broad discretion to decide which judicial forum will be used to handle the matter. Prosecutorial transfer is not subject to judicial review; the decision to charge the case in adult criminal court cannot be appealed (David, 2000; OJJDP, 2001; Sickmund, 2003). States can develop guidelines to help prosecutors in making the decision of where to try the case (Sickmund, 2003; VanVleet, 1999). However, political and public pressures, which are inherent in prosecutors’ jobs, are certainly a legitimate concern. As noted by David, "it is unfair to the child to have the fate of their young life hang in the balance of a political struggle" (David, 2000:67).

There has been a transition from the primary use of the judiciary waiver mechanism, to a prominent reliance on utilizing statutory exclusion and concurrent jurisdiction mechanisms. This change has occurred in the midst of public perceptions of a "super predator" youth and procedural changes from a rehabilitative to punitive approach in juvenile corrections. As Appendix A demonstrates some states have maintained an exclusive use of judiciary waiver, such as Hawaii, Missouri, and Texas; while others have relied primarily on concurrent jurisdiction (i.e., Florida) and statutory exclusion (i.e., New York).
Juvenile Justice System - Keep or Disband

The fifth and final topic outlined in this paper pertains to the question of whether the juvenile justice system should be kept separate from the adult court process, or if the two should be merged together to form one criminal court. Much of this debate stems from the attempt to form a balance between rehabilitation and punishment and is of particular concern when considering the most serious youthful offenders (Lipsey, 1999). Four key issues central to this debate are:

1. 
   The public's perception of a lenient juvenile system that seemingly does not hold youth accountable for their crimes
   
2. 
   The juvenile justice system's ability, or lack thereof, to rehabilitate the juvenile offender
   
3. 
   The developmental capacity of the youthful offender compared to that of an adult
   
4. 
   The use of the correctional system to combine social welfare and social control into one process, while trying to formally recognize youthfulness as a mitigating factor.
   

Two notorious cases that changed the function of the juvenile adjudication process from the system serving as the guardian of an adolescent offender, to one where the youth has similar rights to their adult counterparts, are Kent v. United States and In re Gault. These two cases influenced the use of extraordinary discretion, as well as sought to preserve flexibility, which was valued for its potential to respond to individualized circumstance. In the context of fears about rampant juvenile crime and social breakdown today, these cases are now being deemed as having reckless disregard for judiciary responsible disposition, juvenile accountability, and public safety (Ross, 1995).

Catherine Ross, writing in regards to the American Bar Association's Juvenile Justice Center report A Call for Justice: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings, states that disposition remains the “primary feature that distinguishes the juvenile system from the adult criminal court” (Ross, 1995:1037). The juvenile system maintains broad discretion in determining the disposition of juveniles. Discretion may manifest itself as unrestrained authority leading to an abuse of power, or as merciful and flexible. Although discretionary authority is an issue at all levels of the criminal justice system, it is most pronounced within the juvenile court system.

The juvenile process does not provide as many procedural protections against abusive discretionary authority as the adult process. For example, in juvenile courts youth do not have a constitutional right to a jury trial, are not allowed bail in most states, are detained differently than adults prior to trial, and face greater judicial discretion during disposition (Clement, 1997; Cotton, 1999; David, 2000; Dicks, 1995; Ross, 1995; Sabo, 1996; Sickmund, 2003). If the two systems are combined, offenders of all ages would need to be provided with the same procedural protections. In addition, within a "one-system model," there is the issue of how to provide the youthful offender with the standards of education, rehabilitation, and treatment which are currently a large part of the juvenile justice system (Schwarts, Weiner, and Enosh, 1999).

Of the number of issues yet to be considered if the two court systems are merged; two are presented here. First, what will happen to youths being adjudicated for lesser offenses such as truancy, running away, unruly behavior, or other status offenses? Would these youths then be handled by the social welfare system, rather than the criminal justice system (Feld, 1999)? Or, would these youths then be processed in the criminal court and sanctioned accordingly? If the youths are considered adults in the eyes of the law, would status offenses even exist anymore? If the youths remain in the criminal justice process, the lesser offenses would be recorded in a youth's offense history and utilized for processes such as "three strikes" legislation. In this example, a youth who is found truant for the third time would be facing severe sanctions. This increase of offenders being processed in the criminal court system would include juveniles arrested for curfew and loitering violations.

The second issue concerns the cognitive abilities of young offenders outlined above in the discussion of adolescent development issues and culpability. Youths are granted certain protections that are not provided for in the adult criminal courts. These protections include confidentiality, sealing of records, and termination of the court's jurisdiction when the child reaches majority (Ross, 1995). Without these protections, teens would be released with a criminal record that could have negative effects on future opportunities simply because of a youthful indiscretion. Scott and Steinberg argue that separate juvenile justice and correctional facilities would be more likely to offer an environment in which youth can grow out of criminal behavior. In addition, this system offers better opportunities for education and training that will allow youth to assume conventional adult roles (Scott and Steinberg, 2003).