In June, a 14-year-old boy was arrested after he threw a rock at police during a political rally in New Mexico. Prosecutors stated that the boy, who was charged with two felonies, would be tried as an adult. A police spokesperson stated, “We don’t want to make an example out of a 14-year-old boy. We want to guide him and lead him in the right direction.” The boy’s attorney disagreed, however, asserting that trying his client as an adult “would indicate a completely different scenario than one where they’re not trying to destroy this child.” See Candace Hopkins, “14-Year-Old Charged with Felony after Throwing Rocks at Police in Trump Rally,” KRQE 13 News, June 3, 2016 .
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This story highlights an important aspect of our criminal justice system: the legal construction of juvenile crime. We now operate with the understanding that a juvenile’s action may not be the same as an adult’s—and, instead, that the juvenile might merit unique consideration under the law—and that punishment should perhaps be tailored to development and reform. However, there is lack of uniformity in how we define a “juvenile” and the process by which the law addresses a juvenile’s actions. Jurisdictions have struggled to navigate the line between “leading a juvenile in the right direction” and “destroying the child.” This struggle is not new to our criminal justice system.
Evolution of the Juvenile Court System in
the United States
In the 1700s, laws did not distinguish between juveniles and adults within the criminal justice system. According to a PBS Frontline online article, “Child or Adult? A Century Long View,” children as young as seven years of age were charged, tried, and sentenced in adult criminal courts. This posed many problems, given that there were typically no distinctions made between age, gender, and mental illness, so prison and jail populations were mixed with juveniles and adult criminals. See Center on Juvenile & Criminal Justice, “Juvenile Justice History.”
Progressive reformers of the penal system sought to change this, and the Society for the Prevention of Juvenile Delinquency founded the New York House of Refuge in 1825, an institution specifically for juvenile delinquents. “Child or Adult? A Century Long View,” supra. The idea was to educate and rehabilitate juveniles so as to attack what were believed to be the roots of juvenile delinquency—a lack of moral education and standards. Id. These institutions proliferated across other cities and states, followed by the first juvenile court being established in Cook County, Illinois, in 1899. Id. Juvenile courts were designed to provide not only rehabilitative functions but also protective supervision for youth. “Juvenile Justice History,” supra.
Problems with these early juvenile courts emerged. Judges had broad discretion over their cases without formal hearings, resulting in wide disparities in treatment of juvenile offenders. “Child or Adult? A Century Long View,” supra ; “Juvenile Justice History,” supra. In the 1960s, a series of cases made their way to the U.S. Supreme Court, establishing procedures and due process rights for individuals in the juvenile court system. Id. Ultimately, these decisions led Congress to pass the Juvenile Justice and Delinquency Prevention Act in 1974, which still governs the juvenile justice system. “Child or Adult? A Century Long View,” supra. Through the act, states were offered grants to develop community-based programs as alternatives to institutionalization.
In the 1970s and 1980s, media reports began highlighting an upward trend in violent crime rates, which in turn shifted the political emphasis to being “tough on crime.” As a result, sweeping reforms were passed in many states to make it easier to try juveniles in adult criminal courts, and more punitive juvenile justice laws were passed. “Child or Adult? A Century Long View,” supra.
Violent crime rates and juvenile crime have been in a steady decline over the past 20 years; however, reforms to restore the juvenile court system to its original vision have not been as swift. U.S. Dep’t of Justice, Office of Juvenile Justice & Delinquency Prevention, Trying Juveniles as Adults: An Analysis of State Transfer Laws and Reporting (Juvenile Offenders and Victims, Nat’l Report Series Bulletin, Sept. 2011). If the point of juvenile courts is to deter and rehabilitate juveniles so that they can succeed as adults, then it is important to evaluate the success of that mission when a juvenile is charged as an adult in the criminal justice system.
Being “Transferred” to Adult Court versus
“Aging Out” of Juvenile Court
There are significant differences between states’ treatment of juveniles within their court systems. All states have an “upper age of majority,” by which one is considered eligible for juvenile court jurisdiction. If a juvenile is beyond that age, they are automatically within the jurisdiction of adult criminal court, regardless of the offense charged. This is to be distinguished from cases that can originate in juvenile court but whose jurisdiction can be “waived” to adult criminal court by judicial waiver, prosecutorial discretion, or statutory rule.
Every state determines at what age an adolescent is no longer considered a “juvenile” and becomes an “adult” for criminal justice purposes. Once the “juvenile” reaches the statutorily defined age and is accused of a crime, that individual will automatically be charged in the adult criminal system. According to Juvenile Justice Geography, Policy Practice & Statistics (GPS) information from 2015, the overwhelming majority of jurisdictions (41 states and the District of Columbia) define age 17 as the highest age that an individual can have a case originate in juvenile court. Juvenile Justice, Geography, Policy, Practice & Statistics, “Jurisdictional Boundaries.” Seven states use age 16 as the upper age for juvenile court jurisdiction (Georgia, Louisiana, Michigan, Missouri, South Carolina, Texas, and Wisconsin).
In only two states—New York and North Carolina—age 15 is considered the upper age of majority for juvenile court. In these states, if a juvenile is age 16 or 17, and gets charged with any criminal offense, the case is originated and tried in adult criminal court. However, in 2014, New York Governor Andrew Cuomo announced the formation of a state task force to evaluate and design a plan to reform the justice system in New York to raise the age. Jeffrey A. Butts & John K. Roman, Line Drawing: Raising the Minimum Age of Criminal Court Jurisdiction in New York (Feb. 2014). In North Carolina as well, there have been attempts to raise the age in the legislature, though no measures have passed to date. Rose Hoban, “Advocates Try Again to ‘Raise the Age’,” N.C. Health News, Apr. 1 2015.
In addition, according to the U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention, all states have laws that allow the transfer of a juvenile court case to the adult criminal court, typically under certain circumstances and within certain ages. Thus, the juveniles can be younger than the “age of majority” for juvenile court and still be transferred to adult court. Trying Juveniles as Adults, supra. There are three typical ways that a case can be transferred from juvenile court jurisdiction to adult court: judicial waiver laws, prosecutorial discretion or concurrent jurisdiction laws, and statutory exclusion laws.
Both the Juvenile Justice GPS and report from the Office of Juvenile Justice and Delinquency Prevention explain that in a judicial waiver, the juvenile court judge has the responsibility of waiving jurisdiction, thereby sending the case to adult court. The judge will evaluate the waiver based on a variety of factors that typically include the juvenile’s age and alleged crime. There are some circumstances where the waiver is presumed, but discretion ultimately rests with the juvenile court judge to make the waiver. Id.; “Jurisdictional Boundaries,” supra . A formal hearing and guidelines are in place to assist the judicial waiver process.
In prosecutorial discretion or concurrent jurisdiction laws, there is a class of cases that could be brought before either a juvenile or adult court. It is typically within the prosecutor’s discretion to determine which court will initiate the criminal charges. Some states have formal standards, but there may not be any statutory standards articulated that a prosecutor must follow when using his or her discretion. “Jurisdictional Boundaries,” supra; Trying Juveniles as Adults, supra . There has been a rise in prosecutorial discretion laws.
With statutory exclusion laws, the legislature has typically granted the adult criminal court exclusive jurisdiction over certain types of cases involving juvenile offenders. When a case falls under one of the statutory exclusion laws, it is mandated that the case be filed in adult court rather than in juvenile court. “Jurisdictional Boundaries,” supra; Trying Juveniles as Adults, supra .
In addition, the Office of Juvenile Justice and Delinquency Prevention’s 2011 report found that states may have additional kinds of transfer laws. Some jurisdictions abide by a “once an adult, always an adult” rule, meaning that if a juvenile has been criminally prosecuted as an adult in the past, any future crimes will be automatically filed in adult court rather than juvenile court, regardless of the seriousness of the alleged offense. Trying Juveniles as Adults, supra . Some may have reverse waiver laws that allow juveniles who are charged in adult court to petition that court to have the case transferred to juvenile court; in these cases, the burden is on the juvenile to prove why the case should be transferred to juvenile court. Id. Last, there could be a blended sentence law under which juvenile courts have discretion to impose adult sentences or adult courts have discretion to impose juvenile dispositions. Id.
Impact on Juveniles Sentenced in Adult Criminal Court
The increase in laws that allow more juveniles to be prosecuted in adult court rather than juvenile court was intended to serve as a deterrent for rising youth violent crime. As such, it is important to evaluate what happens to juveniles who go through the adult court system to determine if they are “deterred” from future crime. A comprehensive literature review was completed by the University of California, Los Angeles (UCLA) School of Law’s Juvenile Justice Project in July 2010 that reviewed the impact of juvenile cases prosecuted in adult court. The report, The Impact of Prosecuting Youth in the Criminal Justice System: A Review of the Literature, ultimately found that there has been little to no deterrent effect on juveniles prosecuted in adult court, and in many states, recidivism rates have actually increased.
Statistics compiled from 15 states revealed that juveniles prosecuted in adult court and released from state prisons were rearrested 82 percent of the time, while their adult counterparts were rearrested 16 percent less. Id. Meanwhile, studies have shown that juveniles prosecuted in juvenile court benefit from the services made available to them through that process, as juvenile institutions provide programs and resources specifically designed for juvenile development. Id. Juveniles in adult court often do not have the opportunity to acquire critical skills, competencies, and experiences that are crucial to their success as adults; rather, they are subject to an environment in which adult criminals become their teachers. Id.
“As a crime control policy, placing more young people in criminal court appears to symbolize toughness more than it actually delivers toughness, and that symbol may have a high price.” Line Drawing, supra. The effects of being “tough on crime” mean that there is likely to be longer delays in the court process, longer time spent in pre-incarceration, exposure of juveniles to adult offenders, problems with controlling prison populations, and denial of needed services to juveniles. Id.
The Office of Juvenile Justice and Delinquency Prevention report evaluated a study of outcomes for juveniles prosecuted in adult court rather than in juvenile court and found that there were counter-deterrent effects of transfer laws. Trying Juveniles as Adults, supra . A summary of six studies found that there was greater overall recidivism for juveniles prosecuted in adult court than juveniles whose crimes “matched” in juvenile court. Id. Juveniles in adult court also recidivated sooner and more frequently. Id. These higher rates of recidivism can be attributed to a variety of reasons, including lack of access to rehabilitative resources in the adult corrections system, problems when housed with adult criminals, and direct and indirect effects of a criminal conviction on the life chances of a juvenile. Id.
The reason that juvenile courts were originally created in the nineteenth century was because society recognized that juveniles did not have the cognitive development that adults had, would benefit more from rehabilitative services to prevent recidivism, and needed more protections. Sociological and political shifting of attitudes caused legislators to believe they needed to be “tough on crime,” and transfers of juveniles to adult court became more frequent. Results of those policies demonstrate that they have failed as recidivism rates for juveniles increased when prosecuted in adult court versus juvenile court.
Reforms need to occur just as swiftly as the reforms to prosecute more juveniles in adult court began, so that the emphasis can shift back to focusing on the best interests of the child when juveniles are charged with crimes. Juveniles need resources to equip them to succeed when they are released from juvenile facilities, rather than face the devastating effects of being housed in adult prison systems. Juveniles should be treated as juveniles in the court justice system, with a focus on rehabilitating rather than simply punishing.
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