Waiver to Criminal Court

Juvenile transfer to adult court is the process by which some youths who are viewed by juvenile court judges as inappropriate for the juvenile justice system are transferred to adult court. The decisions to transfer a youth to adult court are typically based on concerns about public safety balanced against considerations of youth development. The rationale for waiver is fourfold: (1) separate severely antisocial from amenable youths, (2) ensure public safety, (3) remove youths unlikely to be amenable within the juvenile court time frame, and (4) hold mature adolescents accountable for their conduct. There are various mechanisms for waiver, including juvenile waiver, prosecutorial filing, and automatic and reverse transfer. The standards applied in each transfer mechanism are typically based on the criteria outlined by Judge Abe Fortas in Kent v. United States (1966). These standards are used by judges in determining whether a youth should be transferred to adult court.

Since the inception of the new juvenile justice system, psychology has played a role in the evaluation of juvenile offenders. Psychology’s link to the waiver process is important because it increases the likelihood that individual characteristics will be considered prior to waiving jurisdiction of youth. An important component of the evaluation is for mental health professionals to suggest what types of treatment might allow for prosocial change. With respect to policy, psychologists can inform the courts about new mechanisms or ways of processing and treating severe offenders that would allow for potential change in their problem behavior and their healthy development.

This entry discusses the rationale for waiver, the various mechanisms for waiver, the standards that are applied by judges in determining whether a youth should be transferred to adult court, and the criteria that underlie each standard. In addition, it describes the relationship between psychology and the waiver process and highlights the contribution to evaluation that mental health professionals can make by suggesting what types of treatment might allow for positive change. Psychology can also help inform policy on the waiver process.

Historical Purposes of Waiver of Jurisdiction

The rationale for and the juvenile court’s interest in upward waiver for certain juvenile offenders is fourfold. First, the juvenile justice system was initiated to rehabilitate delinquent youths. Transfer mechanisms have always been available to avoid the inclusion of youths whose potential dangerousness might detract from the rehabilitative efforts of programs that were designed to benefit errant children and adolescents. Thus, the waiver mechanism was used as a safety valve to remove certain youths who were thought to detract from a system that was intended to treat and improve youths who were believed to be amenable to intervention.

Second, the juvenile justice system is responsible for protecting the public. In most states, the juvenile justice system must release youths in its custody when they reach a certain age (typically 17 or 18 years), depending on the laws pertaining to particular offenses. If it is thought that a juvenile is unlikely to be rehabilitated prior to turning 18 (the most common age after which the juvenile justice system no longer has jurisdiction), the law allows juvenile court judges to waive jurisdiction. This then alleviates any potential threat the child or adolescent might pose to public safety with regard to escape from less secure facilities or at the time of mandatory release.

Third, when a youth’s rehabilitation is considered unlikely, it has been argued that the state has an interest in avoiding the use of its limited rehabilitation resources. Historically, waiver has been an acceptable legal mechanism for avoiding the use of existing resources when even the usually effective treatments would be unlikely to result in rehabilitation. However, the courts are also expected to think of creative ways to help youths change their behavior.

Fourth, until the waiver and transfer laws were enacted, it was legally presumed that all juveniles below a certain age (typically 18 years) were insufficiently mature to be held criminally responsible for their antisocial acts. Youths below this age were automatically treated as juveniles under the parens patriae philosophy. This guiding principle remains as a presumption, but one that is debatable depending on the juvenile’s level of maturity. Thus, juveniles may be transferred if they are viewed as mature participants in a criminal act. Maturity is often considered in conjunction with risk of future offending and treatment amenability.

Mechanisms for Transfer: Routes to and From Juvenile Courts

There are different mechanisms by which the justice system achieves transfer. Transfer mechanisms can be grouped into three categories: judicial (upward) waiver, statutory exclusion, and direct file. Transfer mechanisms are determined by state law, and states may use any combination of mechanisms to meet perceived societal needs and policy goals.

Judicial waiver is the most common method for transferring cases to adult criminal court, with 45 states allowing for transfer of certain types of cases on the basis of juvenile court judges’ decisions about the appropriateness of transfer. Under this method, juvenile court judges make a determination as to whether the juvenile should be tried in juvenile court or transferred to adult court. Juvenile court judges may consider a range of factors in making this decision, including psychological evaluations that address the psychological characteristics of the youth as they pertain to Kent criteria.

Two other mechanisms by which youths may be transferred to criminal court for trial exist. These mechanisms, which were introduced in the 1990s, include statutory exclusion and prosecutorial direct file. At present, 29 states provide a statutory exclusion. In these states, offenders above a certain age or accused of certain types of crime (serious offenses such as murder and assault) are automatically outside the jurisdiction of the juvenile court. In these cases, the charge is filed directly in adult criminal court without any input from juvenile court judges, a formal juvenile hearing, or an evaluation of the youth’s characteristics. This mechanism, which is available in 25 states, removes the discretion of the juvenile court judges from the transfer process entirely.

The second transfer mechanism, which was adopted in 15 states in the late 1980s and early 1990s, is called prosecutorial direct file. This mechanism allows prosecutors to file charges against youths in either juvenile or criminal court for certain types of offenses. Similar to automatic transfer, prosecutorial direct file does not allow for a hearing at the juvenile level, nor is there any evaluation of the youth prior to the prosecutor’s filing of the case directly in adult criminal court. Recent estimates of the percentage of juveniles transferred to adult court under each type of transfer indicate that although newer routes have been introduced, judicial transfer from juvenile courts remains a relatively common mechanism for transfer. Waiver rates differ based on the types of crimes committed and what is occurring in various communities with respect to the level of juvenile violence.

A protective transfer mechanism is now in place in some states if a decision error occurs during the transfer process. In some states where criminal courts receive transferred youths by statutory exclusion or direct file, judges may view the youths as amenable to treatment in the juvenile justice system and/or possibly too immature to be processed in adult criminal court; at this point, juvenile court judges have the opportunity to reverse the transfer or decertify the youths. This option is available in 25 states and serves as a safety net for youths who are inappropriately transferred to criminal court. It is interesting that in some states where judicial transfer from juvenile courts (upward waiver) is used, reverse transfer is an option. However, this special case of the reverse transfer is rare and only occurs in 6 states. In sum, the reverse transfer process, available in 25 states, serves as a protective mechanism for youths who are inappropriately transferred to adult courts (e.g., if they are immature, amenable to treatment, or incompetent to stand trial); however, this mechanism typically requires that some authority (attorney and/or the judge) recognize the decision error and plan a pretrial hearing in criminal court, which then allows the criminal court judge to transfer jurisdiction and send the youths back to juvenile court.

There is also the potential for blended sentencing, wherein the trial occurs in one setting, but sentencing occurs in a different setting or combination of settings. Such a system may result in the imposition of both juvenile and criminal sanctions for the same offense. All these mechanisms are attempts to balance the need for protecting society against the recognition that children may possess diminished capacity compared with adults and therefore deserve a judicial process that takes such factors into account.

Legal Standards for Transfer to Adult Court

With each of the mechanisms for transfer, it is required that the judge apply a “standard” to determine whether or not the youth should be tried in adult court. The laws controlling waiver of court jurisdiction require hearings to address whether evidence supports the statutory criteria for waiver. Many states have two to three levels of legal standards for waiver of jurisdiction. The first is a set of simple threshold conditions that must be met before going further (e.g., age, being charged with a certain offense, having a special history of prior offenses). If the threshold measures are met, then courts in most states can proceed to the point at which they apply one of typically three standards, which are often referred to as (1) public safety or danger to others, (2) amenability to rehabilitation, and (3) the best interest of the child/community. Many of these standards have a similar meaning. Specifically, they are attempting to balance the development of the youth against the protection of society. For instance, the danger to others standard requires that youths not be waived to criminal court unless they present a serious risk of harm to others. The same standard would generally be applied in reverse waiver (requiring that the youth not present a serious risk of harm if the waiver were approved). The amenability to rehabilitation standard allows the court to waive jurisdiction and remand the youth for criminal court trial only if the youth is found to be not amenable to rehabilitation within the resources of the juvenile court (as stated in Kent v. United States) and/or “is not a fit and proper subject” for juvenile custody. Each of these criteria mentioned above are drawn from the eight criteria listed in Kent v. United States. The best interest of the child/community standard requires that the juvenile court judge consider issues such as dangerousness and amenability and attempt to provide the best placement for the youth. Finally, it appears that increasingly states do not list a broader standard but rather list the specific Kent-like criteria to be considered before transferring a youth to adult court. All three standards exist because of a concern for risk of harm to the public.

Criteria Underpinning the Standards: The Kent Criteria

Under each standard within state statutes, there is a set of criteria that judges consider to address the legal standard. Many of these factors listed in state statutes mimic Kent criteria. Specifically, in Kent v. United States, the U.S. Supreme Court recommended eight factors, and most states have etched some permutation of these factors into the statutes or case law. The Kent criteria can be separated into straightforward legal criteria and others that are psychological or psycholegal in content. For example, some Kent criteria—such as whether the case has prosecutorial merit or the desirability of trial in criminal court because the case involves adult associates—are primarily factors that the judges can easily determine without any psychological input. Therefore, forensic clinicians do not need to provide input pertaining to direct legal factors. Other elements of Kent that concern danger to others, sophistication maturity, and amenability to treatment are pertinent psychological constructs for which judges often request psychological evaluations and input.

Psychology’s Link to Juvenile Waiver Considerations

Historically, clinical forensic psychologists have been central participants in the evaluation of youths who were facing transfer. Psychologists are often asked to provide information about the risk the youths pose to society, their level of maturity, and the degree to which they are amenable to treatment. If the youths are amenable, psychological reports and/or testimony then are responsible for providing a road map for change and, in relation, recommend where this change could occur. Traditionally, these questions have been answered by clinical interview alone. More recently, juvenile assessment tools have been designed for the assessment of young offenders that may be helpful in guiding assessment in this area. For example, the Structured Assessment of Violence Risk for Youth, the Youth Level of Service/Case Management Inventory (YLS/CMI), and the Risk-Sophistication-Treatment Inventory (RSTI) are all measures that could be used to examine youths and provide information that is relevant to the courts regarding youths who are being evaluated by the courts. In addition to these measures, Thomas Grisso also provides a structure for the evaluations that might be used. While the aforementioned measures provide structure to the evaluation process, they do not supplant the need for extensive knowledge about adolescent development and the need to keep abreast of the current literature on transfer, risk of violence in youth, maturity, and treatment amenability.

The role of psychology in the waiver of youths has been substantial for two primary reasons. First, psychologists are able to provide relevant psychological information on youths that allows for the individual assessment of youths rather than automatic or direct file procedures that do not consider individual differences. In addition, psychologists’ reports and testimony provide an opportunity not only to describe the youths but also to determine and delineate what needs to change.

Second, the role of psychology has been to aid in the eventual development of policy. Research and scholarly papers thus far have suggested that one way to improve transfer evaluations is to have the evaluations conducted frequently. At present, single-point predictions are limited because they capture the youth at one moment in time but do not incorporate future data. This may not be particularly helpful as the youth grows. Thus, the concepts of youth violence prevention, management, and treatment need to be infused into contemporary thinking on juvenile evaluations by juvenile and adult court decision makers. This conceptual development suggests the need for identifying, measuring, and monitoring changeable risk and readiness for treatment factors in youth because these factors are the most promising targets for reducing problem behavior in youth. Maturity and amenability are two concepts that are changeable and may affect the potential for problem behavior in youth over time, but single-point predictions do not allow for the development of these concepts over time. One such policy change might be to adopt the blended sentence option more frequently so that youths can be monitored over longer periods of time before making an ultimate decision about transfer.

References:

  1. Brannen, D. N., Salekin, R. T., Zapf, P. A., Salekin, K. L., Kubak, F. A., & DeCoster, J. (2006). Transfer of youth to adult courts: A national study of how juvenile court judges weigh pertinent Kent Psychology, Public Policy, and Law, 12, 332-355.
  2. Kent v. United States, 383 U.S. 541 (1966).
  3. Salekin, R. T. (2002). Juvenile waiver to adult court: How can developmental and child psychology inform policy decision making. In B. Bottoms, M. B. Kovera, & B. McAuliff (Eds.), Children and the law: Social science and U.S. law (pp. 203-232). Cambridge, UK: Cambridge University Press.
  4. Salekin, R. T., Yff, R. M. A., Neumann, C. S., Leistico, A. R., & Zalot, A. A. (2002). Juvenile transfer to adult courts: A look at the prototypes for dangerousness, sophistication-maturity, and amenability to treatment through a legal lens. Psychology, Public Policy, and Law, 8, 373-80.
  5. Snyder, H. N., & Sickmund, M. (2006). Juvenile offenders and victims: 2006 national report. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention.

Read more about Juvenile Offenders in Forensic Psychology.