WHAT HAPPENS WHEN WE TREAT JUVENILE OFFENDERS AS ADULTS?

1. WHAT HAPPENS WHEN WE TREAT JUVENILE OFFENDERS AS ADULTS? Class 10

2. Historical Perspectives on Transfer • Historically, all transfer decisions were made by Juvenile Court judges, either sui generis or on motion of the prosecutor. Eligibility for transfer was not regulated by statutes. • Early trends – expulsion as organizational maintenance • Over time, eligibility for transfer was regulated by the legislatures to include only certain types of offenses or offenders. The criteria combined factors including age and type of offense. • The decision was not reviewable

3. Procedural Formality: Kent • Kent v. U.S., 383 U.S. 541 • Juveniles who were waived to the adult court had rights the same due process protections guaranteed under Gault – right to counsel, notice of charges, access to records, and notice or reasons for waiver • Kent ruled that waiver could not be made based solely on the discretion of the judge, and that the court should promote standards to guide the transfer decision and make it fair and consistent.

4. Waiver Standards under Kent • The Supreme Court declined to state what standards should apply, deferring to the individual states. The Kent Court referred to a 1959 policy memorandum from the U.S. District court suggesting principles to guide judges in making transfer decisions. Seeid. at 565. • However, in an Appendix to the decision, they endorsed guidelines that had been adopted by the D.C. Circuit Court, and “suggested” that these factors be considered by judges when making waiver decisions:

6. Other Significant Judicial Waiver Cases • Breed v Jones (421 U.S. 519, 95 S.Ct. 1779) • Transfer hearing must be distinct from adjudicatory hearing in juvenile court, and any coupling of the two would constitute double jeopardy • Issue is amenability, not culpability • People v Jones (958 P.2d 393, 18 Cal 4th 667) • Juvenile court cannot find a minor “fit” after finding him unfit on any of the criteria • “Substantial Evidence” is needed for each criterion • Ct of Appeals reversed Juvenile Court decision to retain • Interventionist court? See dissent by Justice Werdegar • What role should “ceiling” play in waiver decision?

7. Contemporary Policy Issues • Rising juvenile crime rates from 1975-93 gave public little confidence in: • Juvenile courts capacity to attribute culpability • Rehabilitation programs to reform kids • Judges’ willingness to punish serious juvenile offenders • Changing social attitudes on adolescence, crime, and punishment (Gangs, “Superpredators”) • Broader trend toward punitiveness and retribution, and narrowing discretion of sentencing judges • Little research to say if this was a good or bad idea

8. Defining Amenability • Invitation to capriciousness and disparity • E.g., Michigan law bases “amenability” on externality of whether there is an “appropriate dispositional option” • Constructing and deconstructing amenability • People v Jones – Evidentiary standards? • Hearsay • Experts and rebuttal witnesses • Relinquish right to silence? Evidence used against you in subsequent proceedings?

9. Transfer as Law Reform • Starting in 1978, nearly all legislative activity was focused on increasing the number of adolescent offenders that were transferred to the criminal court • Expansion of role of legislatures and prosecutors in drawing jurisdictional boundaries • This era of legislation marked the end of the era of Diversionary Jurisprudence in the Juvenile Court

10. Alternate Mechanisms for Waiver • 1976 as watershed • NY Predicate Juvenile Felony Law – minimums • NY Juvenile Offender Law – adult jurisdiction • Florida legislation – prosecutorial election + • Expansion of criteria for juveniles eligible for judicial waiver – lower age, more offenses, addition of prior record as a factor • Shift of burden of proof from prosecutor to defense in judicial waiver • Presumptive waiver – Court must consider waiver • Reversal of waiver direction – start in criminal court and permit “waive down” (e.g., PA statute)

11. Prosecutorial waiver – prosecutor elects jurisdiction for trial of case, not judge • Legislative waiver – exclusion of specific categories of offenses and offenders from the juvenile court (with option to “waive back” to juvenile court). • Correctional Waiver – blended and contingent sentencing, where correctional authority has option to waive after initial period of confinement

12. Legislative Intentions of Expanded Waiver Laws • Increase the certainty of punishment • Reduce the “leniency gap” between juvenile and adult court • Provide punishments that are proportionate in length and severity of conditions to the severity of the crimes that juveniles commit • Increase the lengths of punishment for adolescents charged with serious crimes • Increase the severity of punishment by exposing adolescent offenders to harsh conditions of adult punishment

13. Who is Waived? • Difficult research question, since there are so many mechanisms • Limited by data problems, as well. • In both prosecutorial and judicial waiver, there is consistent evidence of racial disparity, but effect is masked by disparities in earlier processing decisions. • Some places have unique rules, such as waiver in any case where there is a gun used in the crime • Best guess – about 250,000 juveniles per year. • No change in laws or trends since crime decline beginning in 1993 • Triumph of punitive jurisprudence, contradicts new evidence on immaturity and the jurisprudence of adolescence

14. What Happens When Waived? • Again, little research on this issues. Most kids charged with violent crimes do go to either jail or prison • Sentences are longer -- no evidence of a “leniency gap” • Many first offenders go to prison if waived, depending on the structure of the waiver and adult sentencing laws • Under legislative exclusion systems, many kids are waived back, about one in three in urban areas. This reflects the broad sweep of these laws that capture many “false positives” with those truly who present danger to the community

15. How Effective is Transfer? • Seven studies from several states, and using several different study designs, all show that juveniles prosecuted as adults have higher rearrest rates than juveniles whose cases are heard in the juvenile court • The same studies show that kids who are transferred to adult court are more likely to end up in jail or prison as they get older • Only one study has shown the opposite effect, but the data for that study stopped in 1992, when juvenile crime rates were at their peak. The picture changed dramatically starting in 1993, and so too did our understanding of the effects of punishment.

16. Prior Empirical Research • Florida Studies • Frazier, Bishop and colleagues (1996, 1997 and current replication) • Minnesota Studies • Podkopacz and Feld (1996, 1998) • New York-New Jersey Comparison • Fagan (1996, 2003) • Pennsylvania • Myers (2000), county comparisons • State Aggregates • NY JO Law (Singer and McDowall, 1996), Idaho (2002) • Levitt (1997)

17. COLUMBIA RESEARCH PROGRAM • Research on the comparative impacts of juvenile versus criminal court sanctions on recidivism for critical groups of adolescent felony offenders • Research on the conditions of confinement and correctional experiences for adolescents in the juvenile and adult correctional systems to explain recidivism outcomes

18. RECIDIVISM STUDY • Design: Matched samples in two states where kids are locked up either as juveniles or adults • 7 year followup period to see if they were rearrested or ended up back in jail or prison

23. SUMMARY OF RECIDIVISM FINDINGS

24. COMPARING CORRECTIONAL EXPERIENCES • Interviews with matched samples of adolescent offenders either in juvenile or adult correctional institutions in four states (NY-NJ, CA-AZ) • 415 kids interviewed when they were within six months of release

28. OVERALL STUDY RESULTS • Adolescents prosecuted as adults are significantly more likely to be re-arrested for violence and property crimes, and to be re-incarcerated • Adolescents sentenced as adults report weaker therapeutic environments and greater fear • Adolescents sentenced as adults report more adverse psychological outcomes

29. Why Do They Come Out Worse? • Stigma • Not confined to incarceration • From the process • From the sanctioning experience • Socialization • Trauma • Exclusion

30. Policy Implications • Is there a policy implication? Role of social facts in law and policy • Sometimes policies have unintended, negative consequences. In this case, a policy designed to deter juvenile crime actually made it worse • One of the reasons is that too many kids are transferred under existing laws, there are lots of “false positives” • Our findings are consistent with other studies. We can confidently predict that these results would happen elsewhere • Keeping kids in the juvenile court whenever possible minimizes the risk of “toxic” exposure of youths to harsh adult correctional environment • Complications for re-entry programming and services for adolescents

31. The Tension between Jurisprudence and Social Policy • The demand for punishment is integrated into legal and political culture and expresses itself through sentencing practices that diminish adolescence as a legal or scientific concept • This new jurisprudence of “desert” triumphs even in the face of evidence that it does not help control crime and may increase public risk • Some reformers have tried to recreate the juvenile court within the criminal court, with some success • Issues are not confined to the U.S., spreading across west.

32. Law Reform • Balancing harm: 200 versus 2000 • Decide on a principle, make a hard choice • Avoid redundancy • Set legal standards for criminal court • Regulatory mechanism