WHAT HAPPENS WHEN WE TREAT JUVENILE OFFENDERS AS ADULTS?

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

3. Background Questions What does a waiver decision actually decide? What are the rationales for waiver? Role of waiver in the early juvenile court .. Still true? Is waiver really a sentencing policy?

4. 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

5. 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.

6. 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:

8. Jurisprudential and 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 • Every state modified ‘boundary’ at least one way (and sometimes more than one way) between 1992-97 • Little research to say if this was a good or bad idea

9. Transfer as Law Reform • Waiver raises every fundamental issue in juvenile justice: conceptions of childhood and adolescence, immaturity and culpability, separation of powers, and how and why we sentence. • 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 • In a zero sum game, judges lost discretion to prosecutors • This era of legislation marked the end of the era of Diversionary Jurisprudence in the Juvenile Court

10. Alternate Mechanisms for Waiver • 1978 as watershed • NY Juvenile Offender Law – adult jurisdiction • Florida legislation – prosecutorial election + • Judicial Waiver • Rebuttable, but ground rules are changing • 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 • Breed v Jones (421 U.S. 519) 1975 • Double jeopardy concerns require that waiver determination be independent of fact-finding, independent of the merits of the charge plus other factors • But aren’t the factors weighted toward a finding of delinquency? Isn’t this biasing or prejudicial?

11. Prosecutorial waiver – prosecutor elects jurisdiction for trial of case, not judge Courts have uniformly rejected arguments that Kent constrains legislative definition of what goes to juvenile court  no due process constraints on exercise of prosecutorial discretion Legislative Waiver Excluded categories of offenses and offenders CT 46b-127 (14+ for major felonies) NY 1.20(42) (13+ for murder, 14+ for other major felonies) Reverse Waiver Judge can remand case from criminal to juvenile court for fact-finding or sentencing Correctional Waiver – blended and contingent sentencing, where correctional authority has option to waive after initial period of confinement Due process issues?

12. Legislative Waiver or Exclusion • Exclusion of specific categories of offenses and offenders from the juvenile court (with option to “waive back” to juvenile court) • US v. Bland (DC Cir. 1972) – upholds DC legislative exclusion dropping age from 18 for murder, rape, burglary, robbery • Legislative classifications are entitled to strong presumption of legality, set aside if no grounds can be conceived to justify them • This is just prosecutorial discretion and rational classification by Congress (can define what constitutes a child) • Wright dissent  believes Kent waiver hearing eliminates option of prosecutorial direct file • State v. Behl (Minn. 1997) came to the same conclusion • because no person has fundamental right to juvenile adjudication, thus only need reasonable means to a permissive objective • here a legitimate state objective of public safety

13. Prosecutorial Waiver (Direct File) Prosecutor elects jurisdiction for trial of case, not judge Courts have uniformly rejected arguments that Kent constrains legislative definition of what goes to juvenile court  no due process constraints on exercise of prosecutorial discretion Prop 21 – Prosecutorial Authority Mandatory waiver, prosecutorial election of jurisdiction for many other crime categories, increases in punishment severity and length, registration of gang offenders Manduley v. Superior Court of San Diego County (Cal. Sup. Ct. 2003) – direct file is not a violation of separation of powers – because charging powers have long been made in the prosecutor’s office Judiciary not usurped because, as petitioners concede, legislature has power to take away juvenile court dispositions from all minors Which also defeats the due process claim There is no equal protection because law demands evaluations of individual cases and decision, classification therefore not created by the law itself State v. Mohi (UT 1995) only case to reject prosecutorial direct file on constitutional grounds Perhaps legitimate objective, but cannot be reconciled with “uniform operation” because the selection process is arbitrary and standardless Prosecutors must be required to have some legitimate reason for prosecuting as adult

14. Pennsylvania Statute (Exclusion with possibility of Reverse Waiver) What is excluded? Statutory Exclusion42 Pa. C. S. Sec. 6302 Murder (no age) Other (15): Voluntary manslaughter or the attempt, conspiracy, or solicitation to commit murder or voluntary manslaughter, if (1) a deadly weapon was used or (2) the child was previously adjudicated delinquent for rape, involuntary deviate sexual intercourse, robbery, robbery of a motor vehicle, aggravated indecent assault, kidnapping, voluntary manslaughter, or any attempt, conspiracy, or solicitation to commit murder or any of these offenses. Person (age 15): Rape, involuntary deviate sexual intercourse, aggravated assault, robbery, robbery of a motor vehicle, aggravated indecent assault, kidnapping, or any attempt, conspiracy, or solicitation to commit any of these offenses if a deadly weapon was used; also any of the above offenses (except aggravated assault) if committed by a child who was previously adjudicated delinquent for one of the same offenses, or for voluntary manslaughter or the attempt, conspiracy, or solicitation to commit murder or voluntary manslaughter. Reverse Waiver 42 Pa. C. S. Sec. 6322 If a child accused of an excluded offense (see Statutory Exclusion) files a petition requesting a transfer from criminal to juvenile court and establishes by a preponderance of the evidence that a transfer will serve the public interest, the court may order such a transfer. The court must make the transfer determination after considering the same factors that bear on a juvenile court's decision to transfer a case for criminal prosecution (see Discretionary Waiver). Any transfer order must be supported by "specific references to the evidence," and is subject to expedited appellate review. Once a case has been transferred from adult criminal court, the juvenile court may not retransfer it to adult court.

15. Reverse Waiver • A response to too much waiver from legislative/direct file statutes • Sometimes before fact-finding, sometimes after but before sentencing (New Mexico, Massachusetts, FL) • FL Stat. §985.233 – in post-conviction reverse waiver, judge to look at Kent-like criteria (seriousness of offense, amenability, available facilities, etc.) • but has to be sentenced as an adult if sentenced to death or life imprisonment, BUT if convicted of a lesser included offense or other felony in adult court then may be sentenced as an adult, as a juvenile delinquent, or as juvenile criminal • Troutman v. State (Fla. 1993) holds that juvenile convicted in criminal court may still receive special treatment as a juvenile and required judges to specifically (and individually) decide a youth’s suitability for juvenile or adult sanctions • Walker v. State (Ark. 1991) holds that a youth who was moving party bore the burden of proof in such a situation, and judge did not have to give equal weight to all factors (aka could decide public safety just outweighed)

16. Case Study - California Judicial Waiver Statute • 707 WIC Juvenile Fitness Hearings • Presumptive waiver for enumerated offenses at age 16 (burden of proof on juvenile that she or he should not be found unfit for juvenile court) • Eligible for waiver at age 14 for enumerated offenses • Presumptive waiver at age 14 for murder and other “special circumstances” crimes • With consideration of mitigating circumstances • Victim impact statements permitted during hearing

17. CA Fitness Criteria • ….The minor would be amenable to the care, treatment, and training program available through the facilities of the juvenile court based upon an evaluation of each of the following criteria: • The degree of criminal sophistication exhibited by the minor. • Whether the minor can be rehabilitated prior to the expiration of the juvenile court's jurisdiction. • The minor's previous delinquent history. • Success of previous attempts by the juvenile court to rehabilitate the minor. • The circumstances and gravity of the offenses alleged in the petition to have been committed by the minor. • “Any or all for presumptive waiver”

18. Appellate Cases • People v. Jones (Cal. 1998) • 2 church going 15 year olds on marijuana and alcohol rob store, gun goes off and owner killed • Appellate opinion - Not waiving to adult court here an abuse of discretion based on above factors • Because (1) planned and executed robbery means sophistication, (5) high severity of mix of intoxication plus gun (and not too intoxicated to carry this out) • Dissent: should give more deference to juvenile court, not review de novo • Reversals like this are rare • Most states allow hearsay evidence, characterizing waiver hearings as sentencing or dispositional hearings, not fact-finding • if juvenile loses, no appellate review of waiver decision until/unless conviction, but prosecution can appeal immediately (because of double jeopardy)

19. Case Study - Michigan • Two-part hearing process, • probable cause, • whether best interests of child and public to grant waiver based on these criteria: (a) seriousness of alleged offense (extra weight by statute); (b) culpability of juvenile; (c) juvenile’s prior record (extra weight by statute); (d) juvenile’s programming history; (e) adequacy of programming/ punishment available; (f) dispositional options available for the juvenile • Probable cause burden is on prosecution with evidentiary rules, but for second phase rules of evidence don’t apply and prosecution bears preponderance of evidence • Court-ordered examinations by social workers, psychiatrists, psychologists may not testify at a subsequent criminal proceeding without juveniles written consent

20. Appellate Cases • People v. Hana (Mich. 1993) • Miranda issues alleged - suspect told warnings and police actually tell him to stop confessing • 5th and 6th Amendment rights do not apply at dispositional prong of waiver stage • Public policy of balancing juvenile v. community interests would be best served by relaxing evidentiary standards • Dissent: rehabilitative ideal thrown out with a waiver hearing, this is out-and-out sentencing decision • Ramona v. Superior Court (Cal. 1985) • What if juvenile testifies at certification hearing? holds that this testimony may not be used at later criminal trial or adjudication • Like 4th Amendment hearings, use immunity, for similar rationale

21. 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

22. 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

23. 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

24. 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.

25. 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), Barnowski (2003) on WA law • Levitt (1998) • CDC Review – No positive effect, waiver does more harm than good

26. 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

27. 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

31. SUMMARY OF RECIDIVISM FINDINGS

32. 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

36. 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

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

38. 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

39. 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.

40. 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