CRIM 309

1. CRIM 309 Detention and Waivers

2. Pre-Adjudication Detention • Detention=jails for juveniles • Intended to be a short-term stay for juveniles considered to be a (Schall v. Martin, 1984): • Flight risk • Risk to public safety • Risk to self • Approximately 20% of all juvenile arrests result in detention, but detention has increased over the years, leading to reoccurring overcrowding • Detention should be reserved for most serious offenders but this is not always the case • Police make the initial decision whether to detain or not—take the youth to a detention intake center where a final decision is made • Detention intake precedes the general intake proceeding • Process is handled by detention intake officers, who may or may not be staff of Probation depending on how a county structures its detention facilities • Juveniles do not have an option for bail

3. The Decision to Detain • The decision to detain a youth is determined based on: • Seriousness of the crime • Youth’s status in the system • Availability of parents/caregiver • Presence of warrants • Space • Many detention facilities now use a standardized screening tool to help make the detention decision • Variety of factors are coded • Youth receives a score that dictates whether or not he/she will be detained

4. The Detention Process • Following an initial decision to detain, a youth must receive a detention hearing within 24-72 hours • Court must determine if there is probable cause and suitability for detention need to hold the youth until adjudication • Hearing is not guilt-finding process; thus, a lot of information may be used to assess the need for detention that will not/cannot be used in adjudication

5. Rights in the Detention Process • If hearing is not held within specified time, youth must be released—charges will still be pending • Youth are not constitutionally entitled to bail—some states allow for bail • Not entitled because of parens patriae—court is acting in the best interest of the child • JJDP Act stresses removal of juveniles from adult jails but allows for the use of adult jails if youth is separated (by sight and sound) from adult offenders • Compliance with the JJDP Act took a long time • Juvenile offenders were often held in adult jails until the 1980s in many places and into the 1990s in a few places • Use of adult jails is now more typical in rural areas where the availability of youth facilities is limited or non-existent

6. Ways to Transfer to Adult Court • Judicial Waivers • Legislative Waivers • Prosecutorial Waivers • A mixture

7. Judicial Waivers • Judicial Discretionary Waiver: Judge determines whether a case will be heard in adult or juvenile court at a hearing—decision is entirely up to the judge • Due Process Rights: In the Kent decision, juveniles were given the right to a hearing and: • The right to representation at the hearing • The right to access all records considered for the waiver • The right to hear a statement of the reasons in support of the waiver • Judges must consider a variety of factors including (but not limited to—depends on state law) the following when deciding whether to waive a juvenile to adult court: • Seriousness of offense and public safety • Was the offense committed in an “aggressive, violent, premeditated, or willful manner?” • Sophistication and maturity of the juvenile • Previous history • Prospects for adequate rehabilitation

8. Judicial Waivers, Continued • Other types of judicial waivers • Presumptive—must go to adult unless proven amenable to available rehabilitative services during a hearing: Prosecution must show probable cause for the offense and prove that youth meets criteria • Mandatory—must go to adult once criteria are substantiated in the hearing: Must only determine whether the youth meets the criteria

9. Legislative Waivers • Statutory Exclusion: State law eliminates juvenile court jurisdiction over certain offenders • Age exclusion • Offense exclusion • Prior record exclusion • All three • Reverse waivers: Waiver filed in adult court to return case to juvenile court for adjudication • Once an adult, always an adult: Once filed in adult, all subsequent offenses must be tried in adult court.

10. Prosecutorial Waiver • Also known as Direct File or Concurrent Jurisdiction: Prosecutor decides whether to file a case in adult or juvenile court— judicial waiver is not necessary • Must typically meet certain criteria based on offense, age, prior record • No hearing or rights related to a hearing are required

11. Reasons for Waivers • To deal with chronic offenders • Remove offenders from the juvenile justice system who cannot benefit from rehabilitation • Allow courts to sentence serious and violent offenders to longer and harsher sentences than could be imposed by the juvenile court. • Questionable whether waivers are used for only these purposes and the extent to which waivers are effective responses to crime

12. Other Punitive Changes • Lowering the age of juvenile court jurisdiction • Removing or limiting confidentiality provisions for juvenile cases • Creating and maintaining database of fingerprints and photos of juveniles • Prohibiting the sealing or expunging of juvenile court records

13. Transfer Statistics • Hit peak in 1994 at 12,000 • Unknown how many prosecutorial waivers and statutorily excluded offenses • Who is making the decision? • 45% Prosecutors • 40% Statute • 15% Judges • Who is being transferred? • Not necessarily chronic offenders • Not necessarily the most serious offenders—a lot or property and drug offenses are waived to adult court • Typically offenses specific • Problems: • Discretion in prosecutorial waivers • Rigidity/over-inclusiveness of statutory exclusions

14. Impact of Transfer Policies • Assumption: Transfer to adult court with adult penalties will deter future criminality • Is this assumption correct? • No. Transferred youths tend to recidivate more often and more quickly • No evidence of a general or specific effect • Possible reasons why juvenile court processing is more effective: • JC is better able to identify serious, violent, chronic offenders for adult processing • Treatment in JC produces more success than adult sanctions • Criminal justice system simply fails to deter recidivism

15. Experiences of Transferred Youths • Held favorable opinions of the juvenile court and believed there was an intent to help • Did not feel that criminal court cared or was concerned about situation • Understood adult processing was meant to punish but felt that sentencing was not based on offense as much as on judgments of them as persons • With regard to pre-adjudication detention: • Those in juvenile facilities made relationship with at least one staff member • Those in adult facilities found the environments stressful and dangerous. They were often victimized, and felt overwhelmed, confused, and depressed

16. Impact, Continued • With regard to long-term care: • Those held in juvenile placements described the experience in more positive ways—felt staff generally cared • Those held in adult prisons felt they were viewed as “convicts,” “nobodies”; correctional officers were hostile and provoked outbursts; lack of trust with staff; engaged in more disruptive behavior and associated with older, more experienced offenders • Higher rates of victimization among juveniles held in adult prisons

17. Is the Criminal Justice System Better? • Mistakes in murder cases • Poor representation in death penalty cases • Poor recidivism rates after imprisonment • Discrimination in processing • Inconsistent, capricious sentencing • Overcrowded facilities • Zimring: “Punitive Necessity”—responding to public appeal for more punishment and perceived inequities in the amount of punishment received in one system over another