Pretrial Procedures

1. Pretrial Procedures • Transfer hearings • Detention • Intake • Diversion • Petition and pretrial release • Bail and preventive detention • Plea bargaining (adjustment)

2. Transfer to adult court • Transfer, waiver, bindover, removal • Concurrent jurisdiction • Excluded offenses (traffic, serious) • Number of excluded offenses has increased • Judicial waiver to adult court

3. Kent v. U.S. • Waived to adult court, despite requests for a psychiatric evaluation, access to social service file, motions for a hearing • Found guilty in adult court for housebreaking and robbery, not guilty by reason of insanity for rape

4. Kent v U.S. (1966) • Court ruled that cases of waiver required: • A hearing • Access to counsel and access by counsel to social service records • Reason for the decision

5. Criteria to be considered • Seriousness of offense • Aggressive or violent • Maturity of juvenile • Record of the juvenile • Public protection • Potential for rehabilitation

6. Breed v. Jones • Petition filed and he was adjudicated • Found unfit for juvenile court at disposition hearing • Transferred to adult court • Found guilty • U.S. Supreme Court determined that this was double jeopardy (5th amendment

7. Transfer hearings • Full hearing • Notice • Right to counsel • Statement for reasons

8. Debate over transfer • Get tough vs. rehabilitation • 1% now transferred (drugs most common) • Cases waived increased in early 1990s, number has now been decreasing

9. Debate • Waivers do not necessarily increase public protection; result may be the same in both juvenile and adult court • In one study., only 3% of juveniles tried in adult court received longer sentences than they would have received in juvenile court (1996)

10. Debate • However, in another study those waived to adult court received significantly greater sentences than those retained in juvenile court (1986) • Another problem is that transfers might be motivated by political considerations rather than the case

11. Debate • One study found that juveniles transferred to adult court no more dangerous than those retained • Transfer decisions not consistent: appears to be racial disparity • Problem of prosecutorial discretion: in some jurisdictions prosecutor makes the decision

12. Debate • Need for transfer for very serious cases: juvenile justice system not set up to deal with such cases • Juveniles transferred have greater security risks, less swift punishment, lower conviction rates, shorter incarceration, higher recidivism

13. Detention • Temporary care of youths by the state in a physically restricted facility pending court disposition or transfer to another placement • Shelter care: temporary care in physically unrestricting facilities

14. Detention • Movement to remove status offenders and dependent/neglected to less secure facilities, such as temporary foster care • 60% of detainees are delinquent • Many status offenders are runaways • Increasing number of drug offenses

15. Detention • Increase in the use of detention • Majority are detained briefly and released to parents, screened by intake probation officers • No uniform criteria for detention decisions • Race, class and # of parents might have an influence

16. Detention decision • NCCD recommends that the standards should be: likelihood of new offense, a danger to themselves or community, or likelihood of running away • Most jurisdictions require a detention hearing to extend the period of detention beyond 24 hours

17. Detention hearing • This hearing should be: • Without delay • Right to notice and counsel • Provision of services

18. Detaining juveniles in adult jails • More common in rural areas • Risk of victimization • Few services • Juvenile Justice and Delinquency Act amended in 1989 to require states to remove juveniles from adult jails • Not clear how often this happens—most common estimate 100,000/year

19. Intake • Screening of cases by the juvenile justice system • Decisions: send the youth home, diversion, file a petition, file a petition and detain • Consent decrees and informal probation or informal adjustment

20. Intake • Considerations: age, offense, prior record, cooperativeness of child and parents, whether the youth can get appropriate services elsewhere • Legal rights? • Intake traditionally handled by juvenile probation • Increased role of the prosecutor

21. Diversion • Screening out children from the juvenile court without judicial decision • Roots: labeling theory • Common criteria for diversion: nonviolent or status offender, or alcohol or drug problem, age, no serious priors

22. Diversion • Variety of mechanisms through probation, the court, the prosecutor. Successful participation necessary to avoid court action • In some jurisdictions, 50% of youths are diverted • Net widening

23. Petition • Filing a petition—can be filed by police, parents, probation, or other social service agency • If the child admits to the allegations, a hearing might be scheduled and a treatment plan developed • Otherwise, adjudication hearing set

24. Pretrial • Probation does an assessment • Right to notice (youth, counsel and parents) • Continued detention? • No right to bail, because it is a civil proceeding, can be released to parents, detention is supposed to be rehabilitative, not punitive

25. Bail • Some states do allow for bail for youths • All the problems of the bail system then apply • Without bail, youths have few rights

26. Preventive detention • Detaining a person because of his/her suspected danger to the community and because he/she might commit more crimes • Can a person be detained for acts he/she has not yet committed? • Supreme Court eventually upheld preventive detention for adults, but it is seldom explicitly applied

27. Preventive detention • All states do allow for the preventive detention of juveniles, because although adults have a right to liberty, juveniles have a right to custody, and can be detained for their own protection

28. Schall v. Martin • Detention based on prediction of future behavior not a violation of due process • Must be procedural safeguards, such as notice, a hearing and a statement of facts, before placement in detention

29. Plea bargaining • Not a part of the juvenile court originally, not seen as necessary because the court was there to help • Increasing role of the prosecutor • Most states have now addressed and regulate the practice, but the amount of regulation varies widely • More formal in urban areas

30. Plea Bargaining • Considerable debate over whether it should be used in the juvenile system • It appears to be much less common in the JJS as compared to the adult system, but on the increase • Less common because some of the incentives to plea bargain are less important in the juvenile system (I.e. dropping a felony to a misdemeanor)