Reentry Central Exclusive: Jennifer Hulvat on Prosecuting Juveniles as Adults
Date:  11-13-2013

Argument raised against laws that make it easy for juveniles to be transferred to adult courts
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Adult Prosecution of Juvenile Offenders: A Legislative Conundrum???

Jennifer Hulvat

November, 2013

It takes only a quick review of recidivism rates attributable to juveniles prosecuted as adults in this country to reach a conclusion: What we’re doing in our juvenile justice system isn’t working. Prosecuting juvenile offenders in adult court is neither a deterrent, nor a magic solution to combating juvenile crime in this country. For many years, the legal climate for a juvenile offender entering the system, even for the first time, has been significantly punitive, especially if the offense alleged to have been committed is considered violent or legislatively serious.

Gone are the days when juvenile offenders, at any level, were prosecuted, or “processed,” through a system designed to consider individual assessment and rehabilitation. It appears that the public’s distrust of the juvenile justice system to adequately respond to juvenile violent crime in this country has manifested itself in a monumental shift away from our traditional system of rehabilitating juvenile offenders. Instead, we now utilize powerful transfer, waiver and exclusion laws which often inject juvenile defendants into a adult sentencing framework and correctional system neither equipped to address the rehabilitative needs of the child nor capable or preventing the irreparable social and cognitive damage suffered as a result.

From outward appearances, a review of the laws currently on the books throughout the country directing how, and if, a juvenile offender might be prosecuted in adult court reflect a strong public opinion that juveniles who commit serious crimes should bypass the rehabilitative focus of a juvenile delinquency court in favor of the traditional punitive framework of the adult court. Between 1992 and 1999, all but one state expanded legislation that made it easier for juveniles to be tried as adults. (Hansen, 2001). Generally, this pool of legislation relaxed age restrictions, added defined crimes qualifying for transfer, and made it significantly easier for prosecutors to exercise discretion to affect transfer, eliminating the need for judicial determination. What prompted the shift? A sharp rise in violent crime during the late 1980’s and early 1990’s provoked a re-evaluation of the mechanisms in place to prosecute juvenile offenders in this country. America simply feared its youth, and its “get tough on crime” position found no boundary or moralistic disconnect in its extension to the juvenile offending population. Juvenile arrests for violent offenses jumped dramatically during this time period, increasing 64 percent nationally between 1980 and 1994 (Butts and Travis, 2002). In response to this spike in juvenile violent crime arrests, states began to bolster and enhance legislative avenues to try juvenile offenders in adult courts.

Typically, there are three forms of removal to adult court: (1) judicial waiver, (2) prosecutorial discretion, or “direct file”, and (3) exclusion laws. “Judicial waiver,” the traditional mechanism, allows a juvenile court judge to utilize discretion in the decision to waive a youth to the adult system, generally based on perceived lack of amenability to treatment, which in turn is often based on considerations such as age, seriousness of the current offense, and prior delinquency. As part of the legislative response to increased juvenile crime rates, it became easier to utilize other forms of direct transfer, thereby eliminating the need for a judicial determination based upon discretion. Prosecutors’ ability to “direct file” a case into adult court was amplified. Unlike judicial waiver, no hearing is held to determine which court is appropriate, and there may be no formal standards for deciding between them. The decision is entrusted entirely to the prosecutor (Griffin et al., 2011). Exclusion laws, which are statutory, were also broadened. These restrictive laws specifically direct which crimes and youth offenders of specific ages must be “excluded” from the jurisdiction of the juvenile court. There is no option to file the case in juvenile court. Particularly problematic, among these options, is the potential exercise of prosecutorial unfettered discretion to “direct file” a case in adult criminal court.

As Griffin et al. (2011) point out: In fact, prosecutorial discretion laws are usually silent regarding standards, protocols, or appropriate considerations for decision making. Even in those few states where statutes provide some general guidance to prosecutors, or at least require them to develop their own decision-making guidelines, there is no hearing, no evidentiary record, and no opportunity for defendants to test (or even to know) the basis for a prosecutor’s decision to proceed in criminal court. As a result, it is possible that prosecutorial discretion laws in some places operate like statutory exclusions, sweeping whole categories into criminal court with little or no individualized consideration.

Recognition of the relative ease and availability of juvenile transfer really begs the question: Why? We’ve linked the re-tooled legislation to the cyclical increase in crime over time, but at the heart of the response really is the public policy objective of deterring our youth from engaging in such conduct to begin with. Much has been written in an attempt to both quantify the number of juveniles actually transferred pursuant to this amped up legislation and to the explain the efficacy of it. Interestingly, as Griffin et al. report, there is a national database to track statistics regarding judicial waiver of juveniles to adult court, but no corresponding database exists to track other forms of transfer, such as those affected by way of prosecutorial discretion or exclusion laws. Interestingly, the use of judicial waiver has dropped dramatically since 1994 (Griffin et al., 2011). The corresponding bolstering of exclusion and prosecutorial discretion mechanisms may explain why the judicial waiver avenue was not pursued as often. Because of the lack of archival information, though, it is difficult to discern if this decrease in judicial waiver activity is a result of increased utilization of other, less adversarial methods, or due to a reduction in overall juvenile crime rate.

Butts (2012) examined juvenile arrests of 10-17 years olds in the US population and noted a clear decline in juvenile violence after 2004. When compared with the sharp increase in juvenile arrest rates peaking in the early 1990’s, this certainly signals a shift worthy of note. The total juvenile arrest rate for those offense categorized as violent grew from approximately 300 to 500 per 100,000 between 1980 and 1994, dropped to 270 in 2004, and fell to fewer than 250 per 100,000 by 2010 (Butts, 2012). Arrest rates generally fell for every age group and for all four violent offenses between 1994 and 2004. Violent crime rates fell among young juveniles (under age 15) and older adults (over age 24), but the scale of these changes was overwhelmed by the size of the violent crime drop among older juveniles (ages 15-17) and young adults (ages 18-24). The declines in the rate of murder arrests involving juveniles and young adults completely reversed the increases seen prior to 1994, bringing murder arrest rates down to levels below those of 1980 (Butts, 2012). Certainly, it can be argued that this reduction in juvenile violent crime might decrease the need for judicial waiver, as well as other forms of transfer; however that data is not available. The ability to quantify incidents of transfer, especially in the wake of a reduction in juvenile violent crime, would appear to be pivotal in our ability to judge the efficacy of such tough transfer legislation and our determination of its continued utility, especially in the wake of such dramatic reductions in juvenile violent crime arrests.

The National Conference of State Legislatures published Trends in Juvenile Justice State Legislation, 2001-2011 in June of 2012. This fascinating report contained an exhaustive look at a decade of change among the states in the way juvenile crime is treated in the courts. An overarching theme is the emergence in the last decade of a return to appreciating the unique personal circumstances of the juvenile offender when determining whether juvenile transfer of any kind is appropriate. Specifically, the report provides evidence that, in the wake of declining juvenile crime rates, state legislatures are re-examining juvenile justice policies and making efforts to rebalance approaches to juvenile crime and delinquency (Brown, 2012). Where statistical information is lacking to support the number of juveniles transferred to adult court, there is an abundance of research available to help criminal justice practitioners, social service personnel and legislators better understand why juveniles commit crime and how to prevent it. As suggested in the Trends report:

The research has contributed to recent legislative trends to distinguish juvenile from adult offenders, restore the jurisdiction of the juvenile court, and adopt scientific screening and assessment tools to structure decision-making and identify needs of juvenile offenders. Competency statutes and policies have become more research-based, and youth interventions are evidence-based across a range of programs and services. Other legislative actions have increased due process protections for juveniles, reformed detention and addressed racial disparities in juvenile justice systems. (Brown, 2012, p.3)

Clearly, the pendulum appears to be shifting back to rehabilitation. In the last decade, several decisions from our Supreme Court have reinforced this new trend. In Roper v. Simmons, 543 U.S. 551 (2005), the Court held that the Eighth Amendment’s prohibition against cruel and unusual punishment prohibits the execution of juvenile offenders pursuant to the death penalty before they are 18 years of age. The court focused on the underdeveloped brain of juvenile offenders, suggesting a diminished ability to truly take responsibility for their actions. Then again in 2010, in Graham v. Florida, 130 S. Ct. 2011, the Court abolished the sentence of life without the possibility parole for juveniles convicted of non-homicide crimes. It relied heavily on the reasoning in Roper. Subsequently, in the 2012 decision of Miller v. Alabama, the High Court struck down mandatory life sentences without parole as violative of the Eighth Amendment, drawing heavily upon the reasoning from both Roper and Miller, as it distinguished the inherent differences between juvenile and adult offenders. 132 S. Ct. 2455 (2012). The theme here is simply this: These critical decisions demonstrate how the Court grapples with the lack of discretion inherent in some of the transfer mechanisms mentioned above, which is a confirmation of the Court’s commitment to juvenile offenders as “special” offenders, separate and distinct from adult offenders.

We are also seeing some courts utilize “reverse waiver” laws, which allow juveniles with cases in adult criminal court to petition to have them transferred to juvenile court, as well as a form of “blended” sentencing, which allows both adult criminal courts and juvenile courts to use dispositions available in the other court (Griffin et al., 2011). Research has been somewhat mixed as to the general deterrent effect of transfer laws on a juvenile’s chances of reoffending. Griffin et al. suggests that most studies have not found reductions in juvenile crime rates that can be linked to transfer laws (2011). One multistate analysis by Levitt concluded that there could be a moderate general deterrent effect, and studies based on interviews with juveniles, conducted by Redding and Fuller and by Glassner and others, suggest the possibility that transfer laws could deter crime if sufficiently publicized. However, the weight of the evidence suggests that state transfer laws have little or no tendency to deter would-be juvenile criminals. Possible explanations include juveniles’ general ignorance of transfer laws, tendency to discount or ignore risks in decision making, and lack of impulse control. (Griffin et al., 2011).

This country appears to be facing a conundrum: Juvenile crime and violence rates are down since 1994, but there has been no appreciable retreat in the stiff automatic transfer laws of the late 1990s and beyond. We can only hope, then, that proper discretion prevails and that those in a position to utilize that discretion do so only in the most appropriate cases. As the pendulum continues to swing back toward assessing juvenile offenders as separate and distinct from adult offenders, it remains to be seen how our legislature will react. It will be fascinating to watch the trends in juvenile transfer and prosecution over the next decade, as this country decides if it will, once again, place its faith in a juvenile and criminal justice system which it feels is capable of properly balancing the needs and unique circumstances of the juvenile offender with necessary public safety concerns. Since 2009, attorney Jennifer Hulvat, from the Chicago area, has been a full-time faculty member at Kaplan University, where she serves in the critical role of internship coordinator. Before that, she served Kaplan University as an academic department chair who supervised the Law and Fraud cohort of adjunct instructors. Additionally, she coordinated and interviewed undergraduate internship candidates and became a liaison with law-enforcement agencies on a national level. She joined Kaplan as an adjunct instructor in May of 2005.

She was the senior staff attorney for Chicago’s CLEAR Initiative Project, an aggressive, non-state-funded project to review, edit and align the Criminal Code and the Unified Code of Corrections in Illinois. She also has served as an associate attorney with Robert A. Fisher, Attorney at Law, Chicago, where she was a general practice lawyer working in all areas of criminal defense and federal court.

Contact information for Jennifer Hulvat


Cell: (630) 201-3307 fax (866) 393-4824