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Chapter ObjeCtives After studying this chapter, you should be able to

• Describe the intake process in juvenile court

• Describe the role of discretion in the intake process

• Describe recent trends in intake decision making

• List the screening criteria commonly used in making intake decisions and explain the uses of case conferences in intake screening

• explain the use of and need for the detention hearing or preliminary hearing and describe the due process issues surrounding the detention of juveniles

• explain the functions that plea bargaining and sentence bargaining play in the intake and preadjudication process

Chapter OutLine introduction

the juvenile justice intake process

additional juvenile justice preadjudication processes

Legal issues

Chapter summary

Key Concepts

review Questions

additional readings

notes

Preadjudication Processes in Juvenile Justice

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■ introduction

This chapter examines a variety of pretrial or preadjudication processes that occur in juvenile courts. These pretrial processes include a variety of hearings, conferences, and decision-making events in which determinations about the best methods of handling juvenile court referrals are made. Like the decision to arrest a juvenile, decisions made at this stage of the juvenile court process are critical for a number of reasons. First, they play a major role in determining which youths penetrate further into the juvenile court process. Second, they have a direct bearing on the freedom of juvenile offenders because they often focus on youths’ placement pending further court action. Third, they can lead to formal court processing and assignment of formal labels, such as “delinquent” or “undisciplined child.” Finally, they can halt or set in motion a variety of responses to juvenile offenders that have the potential to exacerbate or reduce the likelihood of subsequent delinquent behavior.

The preadjudication processes that are examined in this chapter come between two important events in the juvenile justice process: the police (arrest) or social agency referral to the juvenile court and the trial or adjudication hearing in which the court decides whether to take formal jurisdiction of a case. One purpose of the preadjudication process is to screen out cases that may be better handled outside of court, meaning youths and their families (and even the victims of their misbehavior) will be spared any harm associated with court involve- ment. Conversely, if they do not effectively screen cases, more youths and their families will be subject to possibly unnecessary and expensive court intervention. Another purpose of the preadjudication process is to determine which cases are appropriate for adjudication. Thus, the decisions made at this stage of the juvenile justice process determine which youths become “official juvenile delinquents.”

■ the juvenile justice intake process

When the decision to arrest a youth is made or when a social agency or a public school refers a youth to the juvenile court, several things occur. Although most people probably picture suspects being handcuffed, taken to the station to be booked, and placed in a lockup when they are arrested, in many instances when a juvenile is arrested, the youth is released into the custody of his or her parents or guardian. The police officer then completes the juvenile arrest report, which is forwarded to the intake unit of the juvenile court for screening. Similarly, when social agencies, schools, or in some jurisdictions parents or citizens make a referral to the juvenile court, it is the intake unit that initially receives the referral.

The purpose of the intake unit is to determine the most appropriate way to handle cases that are referred for possible juvenile court action. As noted earlier, juvenile codes are constructed so broadly that a wide range of juvenile behaviors are potentially sub- ject to juvenile court jurisdiction. As a result, com- plaints alleging that juveniles have thrown snowballs at a school bus, broken a window during a baseball game, engaged in a petty property dispute, disobeyed their parents, stayed out past curfew, or been involved

in a minor altercation in the neighborhood, as well as many more serious matters such as aggravated assaults, burglaries, and property damage cases, are regularly referred to juvenile courts for action. It is the intake unit of the court that has the responsibility of determining

arrest The deprivation of a person’s freedom by legal authority;

the apprehension of the juvenile by the

police; the physical seizing of a person

by the authorities for the purpose of

making that person answer for a crimi-

nal charge.1

intake The process of intro-

ducing youths who come to the police and court’s atten-

tion into the juvenile justice system and determining how

far they go into the system.

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which of these many types of complaints warrant formal court action and which might be better handled in some other way.

F Y i beCause a YOuth is arresteD DOes nOt Mean he Or she is GuiLtY OF an OFFense

It should be kept in mind that being arrested does not mean that one is guilty. Guilt or innocence is deter- mined by the juvenile court at the adjudication hearing (i.e., the trial stage of the juvenile justice process). thus, even though a juvenile is arrested for an offense, he or she is not guilty of that offense until the alleged offense has been proven at the adjudication. Moreover, youths are not considered “official” delinquents until they have been adjudicated.

M Y t h v s r e a L i t Y FOrMaL COurt aCtiOn is nOt neCessarY in everY juveniLe Case

Myth—Juveniles should always receive some type of formal sanction when they engage in delinquent behavior. reality—Delinquency encompasses many types of offenses, many of which do not represent a substantial threat to public or individual well-being. Moreover, most youths engage in delinquency and are not caught, yet they manage to grow up to become healthy adults. also, there is an informal juvenile justice process, as well as diversion programs, that effectively handles many cases each year. It should be remembered that although formal court action can and does serve the best interests of children and the community in many cases, there are other instances when the effects of formal court actions are far from positive.

Traditionally, intake screening was performed by probation officers employed by the juve- nile court or separate state agencies responsible for performing probation and intake func- tions, although it is common for a member of the prosecuting attorney’s office to review most complaints for legal sufficiency. The purpose of this review is to determine if the elements of a chargeable offense are present. Essentially, the prosecuting attorney makes a determination that there are legal grounds for the court to proceed and that the prosecuting attorney’s office is prepared to represent the state’s interests at the adjudication. This model, which places a probation officer or similar caseworker at the center of the intake process, is still used in many states. However, as a result of the “get-tough” movement and efforts to criminalize the juvenile court, prosecutors have begun to play more dominant roles in making intake decisions in many jurisdictions.2 Moreover, in some jurisdictions, such as South Dakota, Washington, Wyoming, Florida, and Indiana, the prosecuting attorney’s office has the primary responsibility for most or all intake decision making. Other states (Arizona, New Mexico, Virginia, and Texas) man- date that cases involving youths with prior records be screened by the prosecutor, and still others (California, Maryland, and Texas) require that serious offenses and weapons offenses be reviewed by the prosecutor.3 Also, in Michigan, as in a number of states, the prosecuting attorney is the only person who can petition the juvenile court in delinquency matters.4 Because prosecutorial screening decisions are based on explicit criteria such as offense seriousness, prior record, and the age of the youth, it removes traditional discretionary decision making from the probation staff. It may also be related to a tendency to rely on more formal processing of juvenile cases. For example, an increase in formal case processing across all offense categories has been noted in juvenile courts since the mid-1980s.5

intake screening The process of deter- mining whether youths should be diverted from the juvenile system or referred for formal or informal services. Screening criteria usually include seriousness of the offense(s), family history, prior delin- quency record or court contacts, legal mandates regarding diversion, attitude, age, school perfor- mance, parental cooperation, employment history, and restitution issues. Unfortunately, screening criteria may also include, despite their inap- propriateness, race, gender, socioeco- nomic status, and whether the child lives in a single- or two-parent family.

legal sufficiency The requirement that an alleged criminal offense and the alleged perpe- trator meet certain criteria before the alleged perpetrator can be charged with a criminal act. A prosecuting attorney, district attorney, or state’s attorney assesses the criminal charges and the characteristics of the alleged perpetra- tor to ensure that the criteria are met.

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The increasing involvement of prosecuting attorneys in the intake process reflects the increasing legalization and punitiveness of the juvenile justice process found in a number of jurisdictions. The increased use of prosecuting attorneys in juvenile justice decision making is an example of a shift toward a punitive model of juvenile justice intended to respond more forcefully to youths who violate the law and to circumvent the discretion employed by proba- tion officers in the traditional intake screening model.

After the complaint is reviewed for legal sufficiency, an intake officer (a probation offi- cer, caseworker, or attorney) screens the complaint in order to make a decision about how the case should be processed. This screening often involves a consideration of the type and seriousness of the offense alleged in the complaint (e.g., harm to the victim) as well as factors such as the age of the youth and his or her offense and court history (if available). In addi- tion, information in the complaint regarding parental response to the offense, the reaction of the youth, and the behavior of the youth in the community, at school, and at home may be considered. Another trend seen in some jurisdictions is the use of more formalized screening or assessment instruments in making intake decisions and the use of assessment centers to screen youth. For example, some states have established juvenile or community assessment centers that have several goals:

• To provide a central entry point for youth coming into contact with the juvenile justice process

• To provide immediate and comprehensive assessments of youths’ needs • To establish a management information system capable of monitoring youths to ensure

that they are receiving needed services and to avoid service duplication • To establish an integrated case management system that ensures that youths receive

needed services and to allow for periodic follow-up and assessment The primary goal, then, of the juvenile assessment center is to assess and coordinate efforts to address the social, mental health, substance use, educational, and family needs of the youth.6 Unfortunately, many jurisdictions do not have single-entry assessment centers that are able to coordinate multiple resources to address youths’ needs. In too many communities, there is a lack of good-quality resources for children. To better understand one intake officer’s perspec- tive of his job, see Box 8-1.

F Y i a varietY OF FaCtOrs DisCOuraGe pOLiCe FrOM MaKinG arrests in juveniLe Cases

there are a number of reasons police might decide not to arrest a juvenile. First, many police believe that juvenile courts are ineffective in dealing with delinquents and that all of the work required to complete a case (i.e., writing up a police report for prosecutorial review, contacting witnesses, and testifying in court) is not worth the likely outcome. Second, police are not obligated to make arrests in every case in which they come into contact with a juvenile who has engaged in illegal conduct, and although they are likely to make an arrest if a serious offense has been committed, they often make “informal adjustments” in instances involving minor delinquent activities. third, the lack of secure detention beds for juveniles in some jurisdictions places limits on the number of youths who can be detained. a major problem confronting many juvenile detention facilities, like adult jails, is chronic overcrowding. In 2008, one in four juvenile facilities reported that they had more residents than standard beds.7

punitive model of juvenile justice

A model of juve- nile justice that

is intended to act as a counter to

what are believed to be traditional

“soft” approaches to juvenile crime

and supports more severe sanctions

for illegal behavior, particularly for

more serious forms of delinquency.

The punitive model of juvenile justice employs the same

criteria used in charging adults, and the focus is on pun- ishment rather than

rehabilitation.

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b O X 8 - 1 IntervIew: Frank weIchleIn, admInIstrator, kalamazoo county JuvenIle home, nInth JudIcIal cIrcuIt court, FamIly dIvIsIon, kalamazoo, mI

Q: What is your educational and employment background? a: I received a Ba in sociology from Western Michigan University in 1978, and an Ma in public administration

from WMU in 1992. I started out my work in juvenile justice by interning at the Kalamazoo county Juvenile home, and upon graduation I was hired to work there as a child guidance worker. I moved to probation after two years and did that from 1980 to 1986. I was the intake supervisor from 1986 until 2005. I am presently the administrator of the Juvenile home.

Q: What were your duties and responsibilities as intake supervisor? a: First of all, I was responsible for overseeing the entire intake process, which includes accepting and

screening of all complaints and petitions that come to the court. I made or oversaw the initial decision as to whether a child or family receives diversion or gets referred to the formal docket. Second, I supervised 11 intake staff. third, I was responsible for the development, implementation, and supervision of diversion programs run by the court. also, with the unification of courts in Michigan, I had added responsibilities related to domestic cases and personal protection orders. For example, we screened all domestic case motions and conducted case reviews on motions regarding parenting time, custody, and change of domicile. and we reviewed requests from citizens for personal protection orders.

Q: In addition to your education and employment background, have you had any specialized training? a: One thing the court has been very good about is providing staff training opportunities. I have been able to

attend numerous seminars and training sessions, all of which have been helpful in my work.

Q: What part of your job in intake did you find the most rewarding? a: Giving young people the opportunity to change behaviors in diversion without having to have a formal

delinquency record gave me the most satisfaction. also, with the added responsibilities that have resulted from court unification, I had an opportunity to be responsive to a broad range of people who come to the court for assistance.

Q: What part of your intake job did you find the least rewarding? a: responding to, and working under, legislation requirements that are not well thought out. the political

posturing that results in legislation being passed without consulting the people that will be responsible for implementing it causes a great deal of frustration. an example of this is the victim rights legislation involving restitution. although I’m in favor of restitution, you cannot treat juveniles like adults in that regard—but that’s what the legislature has tried to do. Other questionable legislation, in my opinion, includes the registration of sex offenders, school safety legislation, changes in waiver statutes, and the development of “designation cases.” While these efforts may be well intentioned, they can produce outcomes that are detrimental to young people, and changes should be considered.

Q: What skills and abilities would you tell college students they should cultivate to work in your field? a: patience, resiliency, the ability to accept diversity, and flexibility are some of the main personality features

anyone going into the field needs to cultivate. In addition, those who work in juvenile justice need to be able to think on their feet and have excellent oral and written communication skills. an intake worker spends a great deal of time communicating with the public, police, victims, juveniles, family members, and the court. Finally, an intake officer must be a person who can think independently, but work under supervision.

Q: What particular strengths and abilities do you feel you brought to your work in intake? a: patience and the ability to see the “big picture,” and I am flexible enough to respond to a changing work

environment. I believe I have good communication skills and an ability to lead and motivate people without being coercive. It is also important to understand the fundamentals of each of my employees’ positions, which is needed for effective supervision.

(continues)

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F Y i the aDjuDiCatiOn is the juveniLe COurt eQuivaLent tO the triaL

adjudication is the trial, final plea, or fact-finding stage of the juvenile process, the stage at which the hearing official determines formal guilt or innocence. It is the juvenile court equivalent to the trial in adult court. adjudication involves a “formal” hearing that is (usually) recorded or transcribed and due process protections, at least theoretically, are afforded the juvenile (i.e., the right to counsel, the right to jury trial [where available], the right to confrontation and cross-examination, the right to subpoena witnesses, and the right to testify or remain silent).

adjudication The trial, final plea,

or fact-finding stage of the juvenile process, the stage at

which the hearing official determines

formal guilt or innocence. It is

the juvenile court equivalent to the

trial in adult court.

Q: What were the major challenges that you faced as intake supervisor? a: certainly my most challenging problem was dealing with serious delinquents on the one hand, while

continuing to advocate for prevention and diversion programs. I genuinely believe in the importance and the effectiveness of prevention and rehabilitation, but serious delinquents take the public’s focus off diver- sion. In addition, the development of domestic case intake processes has certainly been one of the biggest challenges we have faced.

Q: Who did you report to, and where are you in the court administration when you were intake supervisor? a: I reported to the associate court administrator, who is in charge of intake and probation services. I was

considered a department head and I was solidly in middle management.

Q: What unique programs were offered in intake that you believe were particularly effective? a: Our youth diversion program is unique in that it is run by the court, not a youth services bureau outside of

the court. With good caseworkers and the backup of the court, it has proven to be very effective. Our inquiry process also works very well. We have four workers with nonlegal backgrounds, but who have been specially trained, and meet with youth and parents to discuss pending delinquency charges. there are a full range of alternatives available, including formal court action, and these workers do a nice job of screening out and diverting cases. Without them, the court would be overwhelmed with cases. Our prosecuting attorney’s office has been very cooperative in allowing our staff this discretion also. they trust our judgment, and we certainly listen to them in dealing with serious delinquents. the relationship we have developed with the schools in Kalamazoo county has proven effective in trying to intervene early in some families, particularly our system for processing educational neglect petitions. also, we have worked with a number of community agencies in the development and implementation of programs based on the philosophy of balanced and restorative justice.

Q: What types of offenses come in to intake on a regular basis? a: Sadly, assaultive cases have overtaken retail fraud—shoplifting—as the number-one offense that we are

seeing, and many of these assaults involve domestic violence where juveniles are referred for assaulting their parents. these cases concern everyone at the court, and they require the development of interventions specifically for these cases.

Q: What are the most serious issues that you see today in the area of juvenile justice? a: effective programming for the serious delinquent offender is very important, while at the same time not

forgetting the need for early intervention to prevent the circumstances that give rise to serious offending. another serious issue is dwindling resources for all systems that work with children and families, particu- larly community mental health. We are seeing an increase in the number of severely emotionally disturbed juveniles involved with the court.

Q: Is there anything else you would like to tell me about your role at the court? a: Working in juvenile justice is vibrant and exciting, even after almost 30 years. every day brings new chal-

lenges. You never know what is at the other end of the phone call or waiting outside the door.

b O X 8 - 1 (contInued)

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For certain types of cases, the intake decision is routine. In some cases, formal processing is mandatory. For example, intake guidelines typically specify that certain types of serious offenses cannot be diverted and must be petitioned to court. A petition is a request for formal court action containing a statement of charges that is presented at the adjudication or trial stage of the juvenile justice process. In other cases, the intake officer has considerable discretion in determining how a case should be handled. Although some degree of discretion is present in the juvenile court intake process, limits on discretion are typically imposed by state statutes and juvenile court rules of procedure, which often note the types of cases that can be handled informally and those that must be handled formally. For example, in the California Rules of Court, Rule 5.516(a) indicates that intake staff should consider nine factors in deciding whether a matter can be handled at intake. These factors include the following:

(1) Whether there is sufficient evidence of a condition or conduct to bring the child within the juris- diction of the court; (2) If the alleged condition or conduct is not considered serious, whether the child has previously presented significant problems in the home, school, or community; (3) Whether the matter appears to have arisen from a temporary problem within the family that has been or can be resolved; (4) Whether any agency or other resource in the community is available to offer services to the child and the child’s family to prevent or eliminate the need to remove the child from the child’s home; (5) The attitudes of the child, the parent or guardian, and any affected persons; (6) The age, maturity, and capabilities of the child; (7) The dependency or delinquency history, if any, of the child; (8) The recommendation, if any, of the referring party or agency; and (9) Any other circumstances that indicate that settling the matter at intake would be consistent with the welfare of the child and the protection of the public.8

Moreover, the California Rules of Court list a number of additional factors that need to be considered prior to subjecting the youth to a form of informal supervision or prior to filing a petition.9 These and similar criteria place some limits on intake officers’ discretion.

Although juvenile codes and court rules place some limits on intake decision making, intake officers must still exert considerable discretion in deciding how to handle many juve- nile cases because many of the cases referred to intake by law enforcement and other social agencies do not require formal processing. In these cases, the intake officer may decide that dismissing the case or warning the juvenile is the best course of action. Indeed, information contained in the police report may make it clear that the complainant does not desire formal action, or the complaint may indicate that the matter was so trivial that an expenditure of court resources is unwarranted or inappropriate. Some courts operate special programs for certain types of offenders, such as youths who commit minor shoplifting or property dam- age offenses, and eligible youths are routinely referred to these programs by intake officers. In other instances, intake officers may refer youths (i.e., divert them), and in some cases youths and their families, to a variety of community agencies for assistance. Unfortunately, in many communities there are a limited number of good diversion programs that court personnel can use.

Although many complaints receive rather routine screening at the intake stage, others require considerably more of the intake officer’s time. Because police complaints typically contain little information other than that pertaining directly to the alleged offense, intake officers often attempt to collect additional data that they feel will assist them in making appropriate screening decisions. Consequently, it is not uncommon for an intake officer to arrange a case conference with the juvenile and his or her parent(s). The purpose of the case conference (this is called a preliminary inquiry in some jurisdictions) is to allow the intake officer an opportunity to collect additional information that might aid him or her in making a screening decision. In other instances, intake officers might contact a victim or talk with school or social agency personnel in an effort to collect information that they feel will help them in making a screening decision.

petition The request for for- mal court action that contains the written accusation against a juvenile, speci- fies the criminal or delinquent charges being made, and is properly verified as to age and venue by the complainant (the person bringing the charge).

case conference A meeting attended by an intake officer, the juvenile, and the juvenile’s parents that is designed to collect additional information to aid the intake officer in screening a case.

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F Y i statutes Or COurt ruLes GOvern the tiMe FraMes FOr hOLDinG aDjuDiCatiOns

In most states, statutes or court rules set time limits for holding the adjudication, but these time limits vary. Some time limits begin once a youth is taken into custody, and others are based on when the petition is filed. In situations in which a youth is not detained, states are typically required to hold the adjudication within 30 to 180 days.10 however, juveniles have not been granted the right to a speedy trial, and states typically allow for the time limits on adjudications to be extended for “good cause”11 or on the “agreement of the parties.”

F Y i the purpOse OF intaKe is tO MaKe DeCisiOns abOut hOw tO hanDLe Cases

regardless of who performs the intake function—a probation officer who works for the juvenile court or a separate state agency, a cDW that works for the administrative Office of the courts, or a member of the district attorney’s staff—the purpose of intake is to make decisions regarding how cases should be processed by the juvenile court.

F Y i DisCretiOn is invOLveD in intaKe sCreeninG

regardless of who makes intake decisions, discretion is still involved. recent trends toward shifting intake decision making to the prosecuting attorney’s office simply move the discretionary power from one office to another. prosecuting attorneys may still exercise considerable discretion in deciding which cases to petition. therefore, the issue is not so much whether discretion is exercised, but who exercises it and what the outcome of the decision making will be.

the role of Discretion in the intake process

The intake stage of the juvenile justice process is a critical stage because it determines who will penetrate further into the formal juvenile justice process. Although intake guidelines require intake officers to send certain cases forward for adjudication, intake decision makers often have considerable discretion in deciding how the majority of cases referred to the juvenile court should be handled. Options might include dismissing the case, having the offending youth and the parents in for a case conference to collect additional information to assist in making the intake decision, referring the youth to a diversion program (e.g., informal probation or counseling at a community agency), filing a petition (a request for formal court action that represents a legal version of the police complaint and indicates the specific charges used in the adjudication), and waiver or transfer of the case to the adult court. In addition, intake deci- sions could lead to the detention of youths pending a detention hearing. For example, intake officers often make decisions about the detention of youths in the evenings or on weekends and holidays when courts are not in session.

intake Legal requirements

Regardless of who is responsible for making intake decisions for the juvenile court, certain things must happen. First, a decision must be made, based on the documentation presented (usually a police report), that there are sufficient facts to justify an identifiable criminal charge. Consequently, the intake screener, prosecuting attorney, or whoever is making this decision needs to be familiar with the elements of criminal offenses and determine not only that a crime or act of delinquency occurred, but also what the exact charge should be.

Second, a petition or complaint must be prepared and filed with the court. One of the fundamental requirements is that the petition be verified—that someone signs it who vouches

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as to the accuracy of the charges. By signing the petition and vouching for the accuracy of the charges, the “petitioner” also agrees to be responsible for going forward with the case. Essentially, this step commits the prosecuting or state’s attorney to represent the state’s inter- est in court.

Third, the petition or complaint must be presented to the court for the court to take action. The petition can be filed and a detention hearing requested, at which time the juvenile and his or her family can be advised of the charges and of their legal right to a hearing, to an attorney, to confront adverse witnesses, to make a statement in court, to have bail set (where bail is used for juveniles), and to have a formal trial. Juveniles also may present evidence at detention hearings and contest their detention.

If no detention hearing is set, then the petition can be discussed with the juvenile at an informal (off the court record) case conference or preliminary inquiry. The case conference or preliminary inquiry is a meeting attended by an intake officer, the juvenile, and the juve- nile’s parents or guardian (or other responsible adult). The purpose of the case conference is to obtain additional information that can assist the intake officer in making a decision about how a case should be processed. At the case conference, the juvenile and his or her parents or guardian may be advised of alternatives, such as diversion or trial, and various rights that the juvenile has, such as a right to have an attorney represent him or her before the court, and the juvenile may ask questions about the case. In some instances, a juvenile may have an attorney represent him or her at the case conference, although this is not common.

Several states use a pretrial hearing in which a plea is taken. At this hearing, the youth typically admits to the charges, does not contest the charges, or denies the allegation(s) con- tained in the petition. The hearing typically occurs after the prosecutor and the attorney for the juvenile have met to discuss the case and have negotiated a plea, which may be the result of a plea bargain. Far more delinquency cases are settled by pleas than by trial, and the pri- mary purpose of a pretrial hearing is to provide time for plea negotiations. If no plea can be agreed upon at the hearing, then the attorneys can exchange names of witnesses to be called at trial, set any pretrial motions for decision, and delineate for the court any legal or factual issues of importance.

F Y i ManY Cases are DiverteD FrOM juveniLe COurts bY intaKe anD stiLL reCeive sOMe tYpe OF sanCtiOn

Of the estimated 1,504,100 delinquency cases referred to juvenile courts in 2009, approximately 55% had petitions filed. however, of the cases not petitioned to court, only 41% of those cases were dismissed. Sizable percentages of cases not petitioned were dealt with in a variety of ways, such as placement on informal proba- tion (approximately 26%), or they were given some other type of disposition or sanction (33%).12

F Y i intaKe OFten invOLves sCreeninG Cases FOr LeGaL suFFiCienCY

a common practice in instances in which probation officers make intake screening decisions is to have someone from the prosecuting attorney’s office assess the complaint for legal sufficiency (i.e., determine if the elements for a chargeable offense are present).

research on intake Decision Making

A number of factors have been found to influence intake screening decisions, including the seriousness of the offense,13 the youth’s prior record,14 and the youth’s demeanor.15 Youths who have committed serious offenses, those with prior records, and those who are uncooperative are more likely to be petitioned. In addition, variables such as age, socioeconomic status, race,

plea The juvenile’s formal response to criminal charges.

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and gender have been found to influence intake decision making in some jurisdictions, but the influence of these variables is not always clear.16 For instance, in one study of court deci- sion making, both legal factors, such as the seriousness of the offense, and “nonlegal” factors, such as gender, race, and socioeconomic status, were found to influence intake decisions. The findings of this study indicated that the seriousness of the offense was related to the deci- sion to file a petition, but it appeared to be a more important factor for lower-class African American males with a prior record than for other groups.17 In another study of 4,182 Iowa juvenile cases spanning over 21 years, Michael Leiber and Joseph Johnson found that African American and older youths were more likely to be referred to juvenile court at intake than white or younger youths.18 Other studies that have examined decision making at each step of the juvenile justice process have also found that minorities received harsher treatment at each decision-making point, including intake.19

Overall, the research on intake decision making suggests that, at least in some commu- nities, lower-class minority males are more likely than other groups to receive more formal responses at the intake stage.20 In addition, there is considerable evidence that female status offenders are likely to be treated more harshly than their male counterparts, at least in some jurisdictions.21 Although this research indicates that bias in the intake process is not a prob- lem in every jurisdiction, it raises serious questions about the quality of justice available to juveniles in some communities.

F Y i DeCisiOns MaDe at intaKe inFLuenCe DeCisiOns MaDe at Later staGes

Intake decision making is important because there is evidence that decisions made at the earliest stages of the juvenile justice process influence decisions made at later stages. Moreover, as noted, a substantial body of literature exists indicating that there are disparities in the treatment of juveniles in some jurisdictions, at least some of the time. this means that decisions to treat minority youths more severely at the intake stage of the court process often will result in more severe treatment at subsequent stages such as the adjudication.22

■ additional juvenile justice preadjudication processes

In addition to intake screening, a variety of preadjudication processes can occur prior to the adjudication or trial. These include hearings such as waiver or transfer hearings, detention hearings, preliminary hearings, arraignments, plea bargaining negotiations, and bail deter- minations. The remainder of this chapter describes the operation of these preadjudication processes, discusses legal issues that influence their operation, and examines relevant research on the preadjudication stage of the juvenile justice process.

Detention intake and Detention hearings

A special type of intake decision making occurs when police or other juvenile justice agents request the detention of a minor. Police officers, as well as other juvenile justice agents such as probation officers, at times request that youths be detained in juvenile detention units or, in some cases, adult jails. In these instances, an intake officer makes a decision about the appropriateness of the request for detention. It is important to note that it is the intake officer, acting as an officer of the juvenile court; juvenile court judge; or other hearing officer who makes the decision to detain a youth, not the police officer.

The decision to detain a youth, however, is followed up in practice by a detention hearing. Each state’s family or juvenile code mandates that a hearing be held when a minor is deprived of his or her liberty. These hearings are conducted by juvenile court judges, referees, or other hearing officers. At these hearings, the youth and his or her parents are advised of the juvenile’s

detention hearing A hearing in front of a judicial officer

that is required after a juvenile has

been detained or in order to get a

juvenile detained. At this hearing, the juvenile has a right to be present, have his or her parents

or significant adult present, be informed

of the charges, have his or her legal

rights explained, make a plea, have

a trial date set, and request bond (where

permissible).

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rights, an attorney may be assigned to represent the youth, and several important determi- nations are typically made. These determinations include assessing the facts leading to the youth’s custody to determine if probable cause exists to hold the youth. In addition, a decision regarding the placement of the youth is made. The court may decide to continue holding the youth in detention, place the youth in the custody of his or her parents or guardian, or make some other placement decision. Finally, the court may authorize the filing of a petition and set dates for subsequent hearings to review the case or for an adjudication.

C O M pa r at i v e F O C u s

in new Zealand, Family Group Conferences play a Major role in Determining how Cases are handled

In New Zealand, except in special circumstances, young people who have committed offenses and admit their involvement must be referred to a family group conference before any formal charges are made. In cases that are referred to the youth court, they must be referred to the family group conference before sentencing. the family group conference involves the youth who has violated the law, the youth’s family members, and whom- ever he or she invites (e.g., teachers and friends), the attorney representing the youth law violator (usually only in court-referred cases), the victim or victims and their representatives and supporters, the police, and sometimes a social worker. the conference is facilitated by a youth justice coordinator.

In the family group conference, all the participants are given an opportunity to participate in the discussion of the case and to be involved in deciding the case outcome. also, at some point in the conference, the youth who has violated the law and his or her family are given an opportunity to discuss the case privately and to reach agreement about how they think the case should be handled. after this, the conference reconvenes, a plan for resolving the case is discussed, the agreement of all the participants is sought, and modifications to the plan are made, if necessary. In determining the outcome of the case, the conference participants are obligated to consider the offense, the circumstances surrounding the offense, and the interests of the victim. possible outcomes consist of apologies, reparations, community service, participation in a training program, caseworker supervision, short-term residential placement, and in some instances, a period of custody.23

trends in the use of Detention

Although detention is used for a variety of reasons (e.g., holding youths who are awaiting trial, disposition, or transfer to another jurisdiction), there are indications that the use of detention for delinquency grew during the 1990s and early 2000s but has declined in recent years. For example, data on national detention trends reveal a 24% decrease in the number of youth detained in detention centers for delinquency offenses between 2003 and 2010 and a 61% reduction in the detention of youths for status offenses during that period.24 In 2010, most of the youths who were detained prior to adjudication were detained for offenses against persons (36.1%), followed by property offenses (22.7%) and technical violations (20.6%).25 The percentage of youths detained for various offenses prior to their adjudication in 2006 can be seen in Table 8-1.

A troubling reality that plagues juvenile justice in many communities is disproportion- ate minority contact (DMC). One area where DMC has been evident is the disproportionate confinement of minority youths in correctional placements such as detention. Disproportion- ate minority confinement exists when “the proportion of juveniles detained or confined in secure detention facilities, secure correctional facilities, jails, and lockups who are members of minority groups . . . exceeds the proportion such groups represented in the general popu- lation.”26 In most states, minorities are disproportionately represented at each stage of the juvenile justice process, and they are disproportionately represented in detention and other secure placements.27 For example, in 2010, African American youths made up 16.7% of the

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juvenile population between 10 and 17 years of age, but they accounted for 41.0% of the youths detained prior to adjudication. In contrast, white youths made up 76.2% of the juvenile population, but they accounted for only 28.6% of the youths detained prior to adjudication.28

In an effort to deal with this problem, various amendments to the Juvenile Justice and Delinquency Prevention Act (JJDPA) of 1974 have been passed since 1988 that have rec- ognized that minorities are disproportionately represented at various stages of the juvenile justice process, not just in detention, and have redefined DMC as “disproportionate minority contact.” In addition, these amendments have made DMC reduction a “core requirement” of the JJDPA that mandates that states address DMC in order to receive federal formula grants for juvenile justice. As a result, many states have begun to develop plans for reducing DMC.29 Some of these plans may be having some positive effect on the problem of DMC, at least at some stages of the juvenile justice process. A comparison of racial disparities in the juvenile justice process for the years 1992 and 2002 found reductions in racial disparities in arrests and transfers to criminal court in 2002. However, disparities at other decision-making points, such as the detention of youths, were still found.30 At present, there is evidence that improve- ments in DMC have been achieved in some jurisdictions. Nevertheless, DMC continues to be a significant problem in many jurisdictions across the country, and additional research is needed to better understand the factors that contribute to this problem.31

In addition to minorities, males and older juveniles are also overrepresented in detention cases. Males make up the majority of youths placed in detention prior to their adjudication. In 2010, for example, males accounted for 83.4% of all juvenile cases involving detention prior to adjudication. Also, males from 16 to 17 years old accounted for 47.3% of all youths younger than 18 years of age who were detained prior to their adjudication.32

As noted above, there has been a decline in the use of detention prior to adjudication in recent years. One reason for this decline is a reduction in the use of detention for status offenders. The overall decline in the detention of status offenders is due in large measure to two things: (1) new state and federal laws restrict the use of detention for runaways, truants, and incorrigible children, and (2) licensing requirements for detention facilities in some states set age limits for the detention of juveniles. Because many status offenders are young, these licensing requirements result in a reduction in the number of status offenders detained.33 However, there were also reductions in the use of detention prior to adjudication across all offense categories between 2003 and 2010. For example, although there has been a 61% decrease in the use of detention prior to adjudication for status offenses, there was also a 35% reduc- tion in detention for drug offenses, a 30% reduction for property offenses, a 29% reduction for technical violations, a 19% reduction for person offenses, and a 17% reduction for public order offenses during this period.34

table 8-1 number and percentage of juveniles Detained prior to adjudication by type of Offense, 2010

Offense number of juveniles percentage of juveniles

person 3,441 36.1

property 2,161 22.7

technical violations 1,959 20.6

public order 1,189 12.5

Drug 639 6.7

Status 132 1.4

totals 9,521 100.0 Source: Sickmund, M., Sladky, t.J., Kang, W., & puzzanchera, c. (2011). easy access to the census of Juveniles in residential placement. available: http:// www.ojjdp.gov/ojstatbb/ezacjrp/.

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There is good evidence that the number of status offense cases being detained has been reduced significantly over time. Nevertheless, the reductions noted may not be as large as they first appear. Some juvenile court judges have been reluctant to abandon their jurisdic- tion over status offenders, and others feel compelled to use more restrictive sanctions when status offenders fail to follow court orders to attend school or obey the commands of their parents. This has led some judges to redefine repeat status offenders as delinquents by charg- ing them with violations of court orders and then detaining them for violating court orders (a delinquent offense), a process known as bootstrapping. These cases would then appear in the offense category as technical violations. However, as noted above, there has been a substantial reduction in the number of youths detained prior to adjudication in this offense category, suggesting that progress is being made in efforts to reduce the detention of status offenders in many jurisdictions.

F Y i the reasOns FOr raCiaL Disparities in juveniLe justiCe DeCisiOn MaKinG are nOt CLear

although there is ample evidence of DMc at each stage of the juvenile justice process, the reasons for DMc are not clear.

juvenile Detention regulations

When a juvenile is detained, all states mandate that a detention hearing be held within a time frame specified by state law, typically 24 to 72 hours. In addition, most states specify a time frame within which the adjudication must be held when a youth is detained. As noted earlier, the time frame for adjudication typically ranges from 30 to 180 days.35 When a youth is detained, however, many states mandate that the adjudication occur within a shorter time frame, often ranging between 7 and 60 days.36 The question remains as to how long a juvenile should be detained before being given his or her day in court. This question has been answered differently in different states. Although it is important to have a speedy trial, there should be enough time prior to trial to allow the attorney to prepare a meaningful defense. A lack of time to adequately prepare is a problem that plagues many attorneys who practice in juvenile court.37

Requiring a juvenile to stand trial within 7 to 14 days after being detained may sound enlightened, but if the juvenile is charged with a serious offense, 7 days may not be enough time for preparing and presenting an adequate defense at trial. Note that defense attorneys, particularly those who do public defender work, often have large caseloads.38 In addition, a variety of tasks must be accomplished in order to construct an adequate defense. Witnesses need to be interviewed, police reports need to be read, and motions may need to be filed. Because attorneys who represent clients in juvenile court often lack adequate resources for performing these tasks,39 forcing a trial on short notice encourages plea bargaining. Unfortu- nately, it is not clear that giving attorneys additional time in many jurisdictions would result in more attention being devoted to juvenile cases.

Although the use of detention for youths charged with a delinquency offense has decreased in recent years, it is still relatively easy for courts to detain youths. In an important U.S. Supreme Court case, Schall v. Martin, the court ruled that preventive detention was appropri- ate in juvenile cases in order to protect both the juvenile and society from offenses that the juvenile might commit prior to the adjudication. In addition to preventing harm to others, state criteria for detention may also contain language making it possible to detain youths in order to prevent harm to the youth, or to prevent flight from prosecution.40 As a result, deten- tion criteria tend to be so broad that the detention of youths is relatively easy compared with the detention of adults.

bootstrapping The process whereby a status offender is ordered to follow certain conditions set by the court (e.g., attend school, adhere to a curfew, and obey the commands of the parents) and the youth is redefined as a delinquent if he or she violates the court’s orders. The youth’s new status as a delinquent then allows the court to use detention as a response to violations of the court’s orders.

preventive detention Detention of a per- son who is alleged to have violated the law prior to convic- tion so as to prevent the alleged offender from committing any crimes during the preadjudication period.

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preliminary hearings and arraignments

Another type of preadjudicatory hearing found in the juvenile court is the preliminary hearing or arraignment. Although the terms for these hearings and their purposes vary somewhat from state to state, they are primarily designed to take pleas from juveniles and consider their placement prior to adjudication. In some jurisdictions, a preliminary hearing or arraign- ment is used to advise the youth of his or her rights and to determine if the youth plans to contest the charges contained in the complaint or referral. If the charges are contested, then a date for the adjudication is often set. In instances when the charges are not contested, a plea may be accepted at that time and a disposition entered by the court. In other jurisdictions, a preliminary hearing is typically used to consider the removal of the juvenile from his or her home.

Preliminary hearings or arraignments are key events in the juvenile justice process. For example, the decision by the court to deprive a youth of his or her liberty is a potentially ominous determination. As noted earlier, processing decisions made at early stages of the juvenile justice process appear to affect decisions made at later stages.41 Likewise, a decision by a juvenile to not contest a charge or to enter a guilty plea means that the juvenile court may assume formal jurisdiction over the youth. In these circumstances, the court determines that it will take jurisdiction over the youth, which subjects the juvenile to the range of dispositions open to the court, including removal from the home and institutional placement.

When a juvenile has to face the power of juvenile justice agents such as police officers, intake officers/probation officers, prosecuting attorneys, judges and other hearing officers, it is important that the juvenile have someone who can advocate for his or her interests. Accord- ing to the American Bar Association Juvenile Justice Center, the Juvenile Law Center, and the Youth Law Center:

It is critical that counsel appear early in the life of a case. At first appearances in court, if judges ask about events surrounding alleged offenses, the circumstances of arrests, the roles of other youth involved, or clients’ other contact with the juvenile justice system, and attorneys do not have answers, they lose the initial opportunity to present clients’ cases in a favorable light. Judges are left to review the uncontradicted allegations in the charging petitions. Based on incomplete reviews, judges make early determinations regarding detention that may influence cases all the way until their dispositions.42

Given the gravity of the decisions made at preliminary hearings or arraignments, it is common for juveniles to be represented by attorneys at these hearings in many jurisdictions. However, the extent to which attorney representation is typical is not known. Indeed, there is evidence that attorney representation is more of an exception than the rule in some courts and that the quality of representation that is provided to juveniles in some jurisdictions is inadequate.43 Furthermore, some of the research that has examined attorney effectiveness in juvenile court has found that youths who were represented by counsel were more likely to receive harsher punishments than youths without attorneys.44

F Y i the DispOsitiOn is the juveniLe COurt eQuivaLent tO the sentenCinG in CriMinaL COurt

the disposition is the juvenile court analog of the sentencing in criminal court. at the disposition, the court makes a determination about how it will formally respond to a juvenile who has been adjudicated and comes within the jurisdiction of the court. the most common disposition is probation.

preliminary hearing See detention

hearing and arraignment.

arraignment The initial “coming

before” the judge or judicial officer at which time the

juvenile is informed of the charges pend- ing and of his or her constitutional rights;

a plea is entered; a trial date is set, if

necessary; and bail is determined, if

needed.

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the use of bail in juvenile justice

Given the U.S. Supreme Court’s endorsement of preventive detention in juvenile cases, it is not surprising that there is considerable variability in the use of bail in juvenile justice. The wide discretion that juvenile courts have in using preventive detention stands in marked contrast to most adult courts, which make bail available to offenders unless offenders are charged with capital crimes, they have jumped bail in the past, or they have committed another offense while on bail.45 The use of bail in juvenile justice is less common than in the adult criminal justice system. Indeed, very little attention has been given to the use of bail in juvenile cases. Typically, juvenile codes ether allow bail at the discretion of the court, deny youths the right to bail, or ignore it altogether.46 Currently, states such as Arkansas, Colorado, Georgia, Oklahoma, Mas- sachusetts, Michigan, Minnesota, Nebraska, Tennessee, Vermont, and West Virginia permit bail in at least some juvenile cases. In other jurisdictions, such as Hawaii, Oregon, Utah, and Kentucky, juveniles have no right to bail.47 Court rulings that deny juveniles bail are usually predicated on the assumption that because the actions of juvenile courts are intended to correct or help youth who violate the law, because juvenile courts are able to release youths to their parents, and because detention hearings are common in juvenile justice, bail is unnecessary.48

Even in states that allow bail for juvenile offenders, it may not be widely used.49 Indeed, the use of bail in juvenile cases raises a number of questions. One question is, who should be able to post bond for a juvenile? Parents or relatives seem like logical choices, but what about a boyfriend or girlfriend? One possible rule is that the juvenile should be released only to a person who is legally responsible for his or her care, custody, and control. However, not all parents are in a position to post bail, and in other instances parents may be unwilling to post bail. Also, where does a juvenile get money for bail when the parents are poor or are angry and unwilling to post it? Would it be appropriate for bail bondsmen to provide bail money for juveniles?50 If, for some reason, the juvenile absconds on bail, who should be responsible, the child or the parent? Because the purpose of bail has traditionally been to ensure the appearance of the alleged offender at subsequent hearings, if the parent posts bail, would this be sufficient encouragement for the juvenile to appear? These questions reflect the ambiguity that surrounds the issue of bond in the juvenile courts. Despite these questions, however, many courts have attempted to develop guidelines for setting bond in juvenile cases.

F Y i baiL is sOMetiMes useD in juveniLe justiCe

“Bail or a bail bond is a surety in the form of money or property that may be posted by a bonding company or others, including defendants themselves, to obtain their temporary release from custody and to ensure their subsequent appearance at trial.”51

plea bargaining in juvenile justice

plea bargaining is another preadjudicatory process that plays a role in juvenile justice (except in Mississippi, where it is prohibited).52 It consists of negotiations between the prosecution and the defense counsel, often with the consent of the court (in some instances, it is the judge who negotiates with the defense counsel), whereby the defendant agrees to plead guilty in return for the prosecuting attorney’s (or judge’s) promise to reduce the charge or to drop some of the charges pending against the defendant.53 This form of plea bargaining is referred to as charge bargaining because it focuses on the final charge and/or the number of charges that the youth will plead to. However, another form of plea bargaining that occurs in some juvenile

plea bargain An agreement between a prosecut- ing attorney and a juvenile, usu- ally through the juvenile’s attorney, according to which the juvenile admits to a lesser charge in exchange for the reduction of the charge or admits to some charges in exchange for the dismissal of other charges. Techni- cally this is a charge bargain, and it is usually what one considers a plea bargain. However, plea negotiations may also focus on the sentence that the youth will receive, and this is referred to as a sentence bar- gain (see sentence bargaining). Both charge and sentence bargains may occur together or sepa- rately as part of the plea negotiation process.60

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courts is sentence bargaining, which may occur independently of or together with charge bargaining. Sentence bargaining is concerned with the type of sentence or disposition that will be handed down by the court.54 The idea is that each party gives up something in order to achieve a reasonably certain outcome—an outcome that could not be guaranteed if the case went to adjudication. On the one hand, the plea agreement reached guarantees the prosecu- tion a conviction, although the prosecution gives up the opportunity to have the defendant adjudicated on a greater number of charges or on more serious charges. On the other hand, the defendant gives up his or her right to contest the charges at trial as well as other consti- tutional rights. Furthermore, the defendant gives up the opportunity to avoid juvenile court jurisdiction altogether by voluntarily submitting to the court’s jurisdiction through his or her plea. Indeed, as a part of the plea agreement, the defendant must admit to at least one charge.

Plea bargaining and the process through which juveniles make guilty pleas have received scant atten- tion in the research literature. Although plea bargain- ing may be rare or even prohibited in some juvenile courts,55 in other jurisdictions it is a common occur- rence.56 Today, most states attempt to exert some con- trol over plea bargaining.57 Nevertheless, there appears to be considerable variation in the types and quality of plea negotiations that occur in juvenile courts. As Joseph Sanborn found in a study of the plea negotia-

tion process across the country, some jurisdictions do not require judges to remind defendants that they are giving up constitutional rights, make defendants aware of possible dispositional outcomes, determine if the pleas were made voluntarily, and verify that the pleas had a factual basis. Indeed, only two states, Delaware and California, require judges to discuss each of these issues with juvenile defendants.58 Moreover, Sanborn’s research revealed that urban courts are more likely than suburban and rural courts to employ formal procedures governing the plea-bargaining process. As Sanborn notes, his research raises important questions about the continuing informality of many juvenile courts at this crucial stage of the juvenile justice process. Given the increasing punitiveness of at least some juvenile courts, it is essential that defendants clearly understand the potential consequences of the decisions they make or that others make on their behalf.59

F Y i pLea barGaininG is COMMOn in ManY juveniLe COurts

although plea bargaining is a common practice in many juvenile courts, most juvenile cases involve open admission to the charges. although the percentage of cases across the nation that include plea negotiations is not known, Joseph Sanborn’s research on juvenile courts in philadelphia found that about 20% of the cases processed resulted in a negotiated plea. the majority of the negotiations focused on reducing the sentence, usually probation in lieu of an out-of-home placement, or, in cases where there was an out-of-home placement, on securing a less restrictive placement.61

■ Legal issues

One legal issue worthy of attention is the advisability of having a nonjudicial officer make the detention decision. Indeed, the decision to detain a juvenile is the most important decision that the juvenile justice system can make. According to the Michigan Supreme Court in Reist v. Bay County Circuit Judge (396 Mich 326, 241 NW2d 55 [1976]):

The interest of a parent and child in their mutual support and society are of basic importance in our society and their relationship occupies a basic position in this society’s hierarchy of values.

ages/com stock/thinkstock

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Clearly any legal adjustment of their mutual rights and obligations affects a fundamental human relationship. The rights at stake are protected and encompassed within the meaning of “liberty” as used in the due process clause. [emphasis added]

The central issue in the removal decision is whether to remove a child from the fam- ily home. Without question, this is a “legal adjustment” of the family’s mutual rights and obligations. However, should this fundamentally important decision—one that can trigger a variety of due process rights for children and their families—be left to someone who has a legal background or to someone who has a social work background? If the detention decision is made by a supervisor of the detention facility without legal advice or without the benefit of clear legal guidelines or court policies, is this not allowing the “gatekeeper” to determine who should be detained? Moreover, doesn’t this raise the issue of conflict of interest that was considered in Gault?

Another legal issue that should be addressed at the preadjudicative stage of the juvenile justice process concerns the setting of bail. Most states have few or no guidelines for setting bail in juvenile cases, and the lack of guidelines raises serious questions about the fairness or equity of the bail determination process.

A third legal issue concerns the validity of plea bargaining and sentence bargaining in juvenile courts. There are many arguments made by proponents and opponents of plea bar- gaining (charge bargaining) and sentence bargaining, but most fail to address the fundamental reason behind the use of these “tools.” The law is not just or fair in itself, and the operations of the “system” are not just or fair; only people can do justice. Importantly, plea and sentence bargaining introduces flexibility to the system and allows people to see that justice is done. This flexibility is necessary because justice can only be achieved on an individual and case-by-case basis by looking at the offender as a human being, by looking at the victim as a human being, and by then reaching a humane resolution. The other reasons for bargaining—that the system could not try all the cases and that prosecutors routinely overcharge—are good reasons, but they should not be the fundamental basis for plea bargaining.

crItIcal thInkIng QuestIon

The preadjudication process is a critical stage in juvenile justice where important decisions are made about youths. At what points in this process should defense attorneys be involved, and what role should they play?

due process The constitutionally guaranteed right to be treated with fundamental fairness by the law.

sentence bargaining Negotiations between a juvenile, usually through his or her attorney, and the court over the punishment or other consequences that the juvenile will receive in return for a guilty plea. See plea bargain.

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Chapter suMMarY

This chapter examined the pretrial or preadjudicative process in juvenile court. This process includes a variety of hearings, conferences, and decision-making events that are intended to determine the best methods of handling juvenile court referrals. Although the hearings, con- ferences, and negotiations that take place at the preadjudication stage are less glamorous and less formal than the adjudication and the disposition, decisions made at this stage can have a profound effect on later court hearings. For example, during the intake screening process, a variety of critical decisions are made about cases referred to juvenile courts. These decisions determine which charges against the defendant will be authorized and whether the case will go forward to the adjudication and face the prospects of a formal juvenile court response, be transferred to an adult criminal court for trial, or be dismissed. These decisions are very important because they can affect the child’s well-being and that of the community.

Another type of intake decision regularly made in juvenile courts concerns the deten- tion of juvenile suspects pending further court action. Initial decisions to detain juveniles are typically made by intake officers, but state laws require that such decisions be reviewed in a detention hearing within a short time after the juvenile is detained (typically 24 to 72 hours). Similarly, preliminary hearings and arraignments, which are used in some jurisdictions, con- sider some of the same issues addressed in detention hearings. These hearings are primarily designed to determine if the youth plans to contest the charges contained in the complaint or referral, to take pleas from the youth, and to consider the appropriate placement of the youth prior to the adjudication. If the charges are being contested, then a date for the adjudication is often set. In instances where the charges are not contested, then a plea may be accepted at that time and a disposition entered by the court. These hearings play an important role in the processing of juvenile cases, because a variety of important decisions are made that can influence subsequent case processing. For example, it is at these hearings that juveniles may have an attorney appointed to represent them, where decisions about the appropriateness of filing a petition are made, and where decisions about bail (where it is used in juvenile cases) are rendered. Indeed, not only do decisions made at this stage of the juvenile court process determine restrictions on the youth’s freedom, but they can increase the likelihood of more severe dispositions in subsequent hearings. Moreover, like other preadjudicative decisions, those made at detention hearings, preliminary hearings, and arraignments can affect the child in the community in positive or negative ways.

Because the preadjudicative stage of the juvenile justice process has such significant con- sequences, juveniles’ rights must be protected during this stage. However, there is considerable evidence that some courts provide insufficient protections. For example, in some jurisdictions, many juveniles are not represented by attorneys, and in other jurisdictions, attorney represen- tation is inadequate during the preadjudicative phase of juvenile court processing. The lack of adequate attorney representation, of course, raises serious concerns about the quality of justice that juveniles receive. These are issues that must be taken seriously by everyone concerned with ensuring justice for juveniles.

key concePts

adjudication: The trial, final plea, or fact-finding stage of the juvenile process, the stage at which the hearing official determines formal guilt or innocence. It is the juvenile court equivalent to the trial in adult court. arraignment: The initial “coming before” the judge or judicial officer, at which time the juvenile is informed of the charges pending and of his or her constitutional rights; a plea is entered; a trial date is set, if necessary; and bail is determined, if needed.

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arrest: The deprivation of a person’s freedom by legal authority; the apprehension of the juvenile by the police; the physical seizing of a person by the authorities for the purpose of making that person answer for a criminal charge. bootstrapping: The process whereby a status offender is ordered to follow certain condi- tions set by the court (e.g., attend school, adhere to a curfew, and obey the commands of the parents) and the youth is redefined as a delinquent if he or she violates the court’s orders. The youth’s new status as a delinquent then allows the court to use detention as a response to violations of the court’s orders. case conference: A meeting attended by an intake officer, the juvenile, and the juvenile’s parents that is designed to collect additional information to aid the intake officer in screen- ing a case. detention hearing: A hearing in front of a judicial officer that is required after a juvenile has been detained or in order to get a juvenile detained. At this hearing, the juvenile has a right to be present, have his or her parents or significant adult present, be informed of the charges, have his or her legal rights explained, make a plea, have a trial date set, and request bond (where permissible). due process: The constitutionally guaranteed right to be treated with fundamental fairness by the law. intake: The process of introducing youths who come to the police and court’s attention into the juvenile justice system and determining how far they go into the system. intake screening: The process of determining whether youths should be diverted from the juvenile system or referred for formal or informal services. Screening criteria usually include seriousness of the offense(s), family history, prior delinquency record or court contacts, legal mandates regarding diversion, attitude, age, school performance, parental cooperation, employment history, and restitution issues. Unfortunately, screening criteria also may include, despite their inappropriateness, race, gender, socioeconomic status, and whether the child lives in a single- or two-parent family. legal sufficiency: The requirement that an alleged criminal offense and the alleged perpe- trator meet certain criteria before the alleged perpetrator can be charged with a criminal act. A prosecuting attorney, district attorney, or state’s attorney assesses the criminal charges and the characteristics of the alleged perpetrator to ensure that the criteria are met. petition: The request for formal court action that contains the written accusation against a juvenile, specifies the criminal or delinquent charges being made, and is properly verified as to age and venue by the complainant (the person bringing the charge). plea: The juvenile’s formal response to criminal charges. plea bargain: An agreement between a prosecuting attorney and a juvenile, usually through the juvenile’s attorney, according to which the juvenile admits to a lesser charge in exchange for the reduction of the charge or admits to some charges in exchange for the dismissal of other charges. Technically this is a charge bargain, and it is usually what one considers a plea bargain. However, plea negotiations may also focus on the sentence that the youth will receive, and this is referred to as a sentence bargain (see sentence bargaining). Both charge and sentence bargains may occur together or separately as part of the plea negotiation process. preliminary hearing: See detention hearing and arraignment. preventive detention: Detention of a person who is alleged to have violated the law prior to conviction so as to prevent the alleged offender from committing any crimes during the preadjudication period.

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punitive model of juvenile justice: A model of juvenile justice that is intended to act as a counter to what are believed to be traditional “soft” approaches to juvenile crime and supports more severe sanctions for illegal behavior, particularly for more serious forms of delinquency. The punitive model of juvenile justice employs the same criteria used in charging adults, and the focus is on punishment rather than rehabilitation. sentence bargaining: Negotiations between a juvenile, usually through his or her attorney, and the court over the punishment or other consequences that the juvenile will receive in return for a guilty plea. See plea bargain.

revIew QuestIons

1. What purpose does an intake unit serve in a juvenile court? 2. What are the typical factors used to determine whether a juvenile is referred for formal

court action? 3. What factors may influence the intake decision? Which of these factors are appropriate

to use? 4. How are case conferences used in the intake process? 5. Why are some jurisdictions using prosecuting attorneys to make intake decisions for the

juvenile court? 6. What is a detention (or preliminary) hearing, and how does it fit into the intake process? 7. What is an arraignment, and how does it fit into the intake process? 8. Does plea bargaining exert a positive or negative influence on the intake process? 9. In what ways are charge bargaining and sentence bargaining different?

10. What legal rights must be observed by the court before a juvenile can be detained? 11. What is bail, and how does it work? What arguments could be made for and against the

use of bail in juvenile justice? 12. What effect has Schall v. Martin had on the preadjudication process? 13. What is a sentence bargain?

addItIonal readIngs

Feld, B. C. (1999). Bad kids: Race and the transformation of the juvenile court. New York: Oxford University Press.

Pope, C. E., & Feyerherm, W. H. (1990). Minority status and juvenile justice processing: An assessment of the research literature. Criminal Justice Abstracts, 22, 327–335.

Puritz, P., Burrell, S., Schwartz, R., Soler, M., & Warboys, L. (1995). A call for justice: An assessment of access to counsel and quality of representation in delinquency proceed- ings. Washington, DC: American Bar Association.

Sanborn, J. B., Jr. (1992). Pleading guilty in juvenile court: Minimal ado about some- thing very important to young defendants. Justice Quarterly, 9, 126–150.

notes

1. Black, H. C. (1968). Black’s law dictionary (4th ed.). St. Paul, MN: West Publishing Co., p. 140.

2. Rubin, H. T. (1980). The emerging prosecutor dominance of the juvenile court intake process. Crime and Delinquency, 26, 299–318.

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3. Sanborn, J. B., & Salerno, A. W. (2005). The juvenile justice system. Law and Process. Los Angeles, CA: Roxbury.

4. Juvenile code. Mich. Comp. Laws 712A.2(a)(1). 5. Puzzanchera, C., Adams, B., & Sickmund, M. (2010). Juvenile court statistics, 2006–2007.

Pittsburgh, PA: National Center for Juvenile Justice. 6. Oldenettel, D., & Wordes, M. (2000). The community assessment center concept. Juvenile

Justice Bulletin. Washington, DC: Office of Juvenile Justice and Delinquency Prevention. 7. Hockenberry, S., Sickmund, M., & Sladky, A. (2011). Juvenile residential facility census,

2008: Selected findings. Juvenile Offenders and Victims: National Report Series (Bulletin). Washington, DC: Office of Juvenile Justice and Delinquency Prevention.

8. California Rules of Court. Court Rules. Title Five. Family and Juvenile Rules (Rules 5.1– 5.830). Retrieved from http://www.courts.ca.gov/rules.htm. Reprinted by permission of the California Administrative Office of the Courts.

9. California Rules of Court. Court Rules. 10. Snyder, H. N., & Sickmund, M. (1995). Juvenile offenders and victims: A national report.

Washington, DC: Office of Juvenile Justice and Delinquency Prevention. 11. Sanborn & Salerno, 2005. 12. Puzzanchera, C., & Kang, W. (2012). Easy access to juvenile court statistics: 1985–2009.

Retrieved from http://www.ojjdp.gov/ojstatbb/ezajcs/. 13. Bell, D., Jr., & Lang, K. (1985). The intake dispositions of juvenile offenders. Journal of

Research in Crime and Delinquency, 22, 309–328; Cohen, L. E., & Kluegel, J. R. (1978). Determinants of juvenile court dispositions: Ascriptive and achieved factors in two metro- politan courts. American Sociological Review, 43, 162–176; Fenwick, C. R. (1982). Juvenile court intake decision making: The importance of family affiliation. Journal of Criminal Justice, 10, 443–453; Minor, K. I., Hartmann, D. J., & Terry, S. (1997). Predictors of juve- nile court actions and recidivism. Crime and Delinquency, 43, 328–344; McCarthy, B. R., & Smith, B. L. (1986). The conceptualization of discrimination in the juvenile justice process: The impact of administrative factors and screening decisions on juvenile court dispositions. Criminology, 24, 41–64.

14. Cohen & Kluegel, 1978; Fenwick, 1982; McCarthy & Smith, 1986. 15. Bell & Lang, 1985; Fenwick, 1982. 16. Bell & Lang, 1985; Cohen & Kluegel, 1978; Leiber, M. J., & Johnson, J. D. (2008). Being young

and black: What are their effects on juvenile justice decision making? Crime & Delinquency, 54, 560–581; McCarthy & Smith, 1986; Thornberry, T. P. (1979). Sentencing disparities in the juvenile justice system. Journal of Criminal Law and Criminology, 70, 164–171.

17. Thomas, C. W., & Sieverdes, C. M. (1975). Juvenile court intake: An analysis of discretion- ary decision-making. Criminology, 12, 413–432; Bell & Lang, 1985; McCarthy & Smith, 1986; Thornberry, 1979.

18. Leiber & Johnson, 2008. 19. Fagan, J., Slaughter, E., & Hartstone, E. (1987). Blind justice? The impact of race on the

juvenile justice process. Crime and Delinquency, 33, 224–258; Leiber & Johnson, 2008. 20. Pope, C. E. (1995). Equity within the juvenile justice system: Directions for the future.

In K. K. Leonard, C. E. Pope, & W. H. Feyerherm (Eds.), Minorities in juvenile justice. Thousand Oaks, CA: Sage.

21. Chesney-Lind, M., & Shelden, R. G. (2004). Girls, delinquency and juvenile justice (3rd ed.). Belmont, CA: Thompson/Wadsworth, pp. 198–203. This resource reviews the literature.

Notes 209

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22. Pope, C. E., & Feyerherm, W. H. (1990). Minority status and juvenile justice processing: An assessment of the research literature. Criminal Justice Abstracts, 22, 327–335.

23. Morris, A. (2004). Youth justice in New Zealand. In M. Tonry & A. N. Doob (Eds.), Youth crime and youth justice: Comparative and cross-national perspectives (Vol. 31). Chicago: University of Chicago Press.

24. Sickmund, M., Sladky, T. J., Kang, W., & Puzzanchera, C. (2011). Easy access to the census of juveniles in residential placement. Retrieved from http://www.ojjdp.gov/ojstatbb/ezacjrp/; Sickmund, M., Sladky, T. J., Kang, W., & Puzzanchera, C. (2008). Easy access to the census of juveniles in residential placement. Retrieved from http://ojjdp.ncjrs.gov/ojstatbb/ezacjrp/.

25. Sickmund et al., 2011. 26. Devine, P., Coolbaugh, K., & Jenkins, S. (1998). Disproportionate minority confinement:

Lessons learned from five states. Juvenile Justice Bulletin. Washington, DC: Office of Juve- nile Justice and Delinquency Prevention. This reference cites the 1988 amendments to the Juvenile Justice and Delinquency Prevention Act of 1974.

27. Office of Juvenile Justice and Delinquency Prevention. (1999). Minorities in the juvenile justice system. Juvenile Justice Bulletin: 1999 National Report Series. Washington, DC: Office of Juvenile Justice and Delinquency Prevention.

28. Puzzanchera, C., Sladky, A., & Kang, W. (2011). Easy access to juvenile populations, 1990– 2010. Retrieved from http://www.ojjdp.gov/ojstatbb/ezapop/; Sickmund et al., 2011.

29. Pope, C. E., Lovell, R., & Hsia, H. M. (2002). Disproportionate minority confinement: A review of the research literature from 1989 through 2001. Juvenile Justice Bulletin. Washington, DC: Office of Juvenile Justice and Delinquency Prevention; OJJDP. (2009). Disproportionate minority contact. OJJDP in focus. Washington, DC: Office of Juvenile Justice and Delinquency Prevention.

30. Snyder, H. N., & Sickmund, M. (2006). Juvenile offenders and victims: 2006 national report. Washington, DC: Office of Juvenile Justice and Delinquency Prevention.

31. Huizinga, D., Thornberry, T., & Lovegrove, P. (2007). Disproportionate minority contact in the juvenile justice system: A study of differential minority arrest/referral to court in three cities. Washington, DC: Office of Juvenile Justice and Delinquency Prevention.

32. Data were extracted from Sickmund et al., 2011. 33. Mich. Comp. Laws 712A.15(3); Mich. Court Rules 5.935(D); West’s California Welfare

and Institutions Code, sec. 632; Illinois S. H.A., chap. 37, para. 703-1; Juvenile Justice and Delinquency Prevention Act of 1974; Teitelbaum, L. E. (1980). 1977 IJA-ABA Joint Commission on Juvenile Justice Standards. Cambridge, MA: Ballinger.

34. Percentages were calculated based on data from Sickmund et al., 2011. 35. Snyder & Sickmund, 1995. 36. Sanborn & Salerno, 2005. 37. Puritz, P., Burrell, S., Schwartz, R., Soler, M., & Warboys, L. (1995). A call for justice: An

assessment of access to counsel and quality of representation in delinquency proceedings. Washington, DC: American Bar Association.

38. Puritz, Burrell, Schwartz, Soler, & Warboys, 1995. 39. Puritz, Burrell, Schwartz, Soler, & Warboys, 1995. 40. Sanborn & Salerno, 2005. 41. Bailey, W. C., & Peterson, R. D. (1981). Legal versus extra-legal determinants of juvenile

court dispositions. Juvenile and Family Court Journal, 32, 41–59; Clarke, S. H. & Koch,

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G. G. (1980). Juvenile court: Therapy or crime control, and do lawyers make a difference? Law and Society Review, 14, 263–308.

42. Puritz, Burrell, Schwartz, Soler, & Warboys, 1995, p. 9. 43. Feld, B. C. (1988). In re Gault revisited: A cross-state comparison of the right to counsel

in juvenile court. Crime and Delinquency, 34, 393–424; Feld, B. C. (1991). Justice by geog- raphy: Urban, suburban, and rural variations in juvenile justice administration. Journal of Criminal Law and Criminology, 82, 156–210.

44. Burruss, G. W., Jr., & Kempf-Leonard, K. (2002). The questionable advantage of defense counsel in juvenile court. Justice Quarterly, 19, 37–68; Clarke & Koch, 1980; Feld, 1988; Guevara, L. C., Spohn, C., & Herz, D. (2004). Race, legal representation, and juvenile justice: Issues and concerns. Crime and Delinquency, 50, 344–371.

45. Senna, J. J., & Siegel, L. J. (1992). Juvenile law: Cases and comments (2nd ed.). St. Paul, MN: West.

46. Feld, 2000. 47. Cox, S. M., Conrad, J., & Allen, J. (2003). Juvenile justice: A guide to practice and theory

(5th ed.). New York: McGraw-Hill; Bartollas, C., & Miller, S. J. (2008). Juvenile justice in America (6th ed.). Upper Saddle River, NJ: Prentice-Hall; Law.justia.com.

48. Rubin, H. T. (1985). Juvenile justice: Policy, practice, and law (2nd ed.). New York: Random House; Rubin, H. T. (2003). Juvenile justice: Policies, practices, and programs. Kingston, NJ: Civic Research Institute.

49. Champion, D. J. (1992). The juvenile justice system: Delinquency, processing and the law. New York: Macmillan.

50. Simonsen, C. E. (1991). Juvenile justice in America (3rd ed.). New York: Macmillan. 51. Champion, D. J. (2007). The juvenile justice system: Delinquency, processing and the law.

Upper Saddle River, NJ: Pearson-Prentice Hall, p. 153. 52. Sanborn & Salerno, 2005. 53. Michigan Judicial Institute. (n.d.). Handbook of legal terms. Lansing, MI: Michigan Judicial

Institute; Sanborn & Salerno, 2005. 54. For a good discussion of plea bargaining in juvenile justice, see Sanborn & Salerno, 2005. 55. Senna & Siegel, 1992; Sanborn & Salerno, 2005. 56. Sanborn & Salerno, 2005. 57. Sanborn, J. B., Jr. (1992). Pleading guilty in juvenile court: Minimal ado about something

very important to young defendants. Justice Quarterly, 9, 126–150. 58. Sanborn, 1992. 59. Sanborn, 1992. 60. Sanborn & Salerno, 2005. 61. Sanborn, 1992.

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Chapter ObjeCtives After studying this chapter, you should be able to

• Describe what is meant by waiver or transfer of youths from juvenile court to adult criminal court

• Describe the different methods by which youths are transferred or waived to the adult justice system

• Describe the general criteria that must be satisfied in order to transfer a juvenile to the adult justice system

• present a detailed discussion of the reasons why transfer is used from the perspective of the community, political and law-making bodies, and the juvenile and adult courts

• Describe recent trends in the use of transfer

• present a detailed discussion of the legal and due process issues involved in transfer

• Describe how transferred juveniles are handled by the adult criminal courts

• Describe the effectiveness of waiver

• present arguments on the pros and cons of waiver

Chapter Outline introduction

the purpose of transfer of juveniles to Criminal Court

Mechanisms for the transfer of juveniles to Criminal Court

trends in the use of transfer

Due process and transfer Decisions

research on the use and effectiveness of transfer

Other Developments in the use of transfer

standards Governing transfer Decisions

Correctional programming for juveniles Convicted in Criminal Court

The Transfer of Juveniles to Criminal Court

chapter

F O S T E R , C E D R I C 1 6 9 2 T S

■ introduction

With the establishment of the first formally organized juvenile court in Illinois in 1899 and the spread of juvenile courts to other states, jurisdiction over juveniles charged with law violations shifted from the criminal courts to the juvenile courts. However, many people believed that in certain circumstances, juveniles who committed serious offenses might be more appropriately dealt with by criminal (or adult) courts. Consequently, most early juvenile codes contained provisions for transferring some types of juvenile cases to criminal courts, although the criteria used to make such decisions were often vague and subjective.1

Today, all states and the District of Columbia make it possible for some juveniles to be tried in criminal courts. Moreover, most states have multiple ways by which some juveniles can be given adult sanctions.2 The process by which juveniles are bound over to criminal courts for trial is called waiver, certification, remand, bindover, or transfer. The use of transfer has increased dramatically in recent years as more policy makers have adopted a “get-tough” approach in dealing with juvenile crime. Indeed, research on factors related to transfer indicate that legal factors such as seriousness of the offense, particularly when weapons are involved, and prior criminal history often influence decisions to waive youth to criminal courts. Never- theless, there is also some evidence that extralegal factors, such as race, age, and the location of the juvenile court (urban courts appear less likely to transfer youths) can also play a role. And there is some evidence that some judges are more likely to transfer youths than others.3 Indeed, the decision to try juveniles in criminal courts, at least in some instances, appears to be a political and emotional decision that reflects the beliefs of decision makers about certain youths and their potential threat to community safety.

Regardless of the reasons for the transfer of a juvenile case to a criminal court, the decision to go forward with the transfer can have profound consequences for youths who are subject to prosecution in adult courts, their family and friends, and the community. Historically, juvenile courts have attempted to shield youths from the negative consequences associated with being prosecuted in open criminal courts and being exposed to more mature and hardened offend- ers in the adult criminal justice process. Furthermore, juvenile courts have sought to offer youths “protection against loss of civil rights, against disqualification for public employment, and against personal status degradation and restriction of legitimate opportunities that often follow criminal conviction.”4 After a youth is transferred to a criminal court, however, these

waiver The process by

which a juvenile is moved from juvenile court jurisdiction to adult criminal court

jurisdiction for an offense committed

while still a juve- nile. Also known as bindover, certifica- tion, remand, and

transfer.

legal issues

Chapter summary

Key Concepts

review Questions

additional readings

Cases Cited

notes

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protections are lost, which can have important long-term consequences for the juvenile and his or her significant others. Moreover, if the transfer decision fails to influence the juvenile in ways that reduce the likelihood of recidivism, then community safety is also jeopardized.

The option of transferring juveniles to criminal courts raises important questions about the best response to adolescent offenders, particularly those who have committed serious offenses. In particular, to what extent does the transfer of juveniles to criminal courts benefit the youths themselves or the communities most will return to at some point? This question invariably arises in discussions of transfer, and it needs to be carefully addressed if effective policies for dealing with serious juvenile crime are to be developed.

This chapter examines the use and consequences of transfer. Specifically, it examines the purpose of transfer, different mechanisms by which juveniles may be transferred to criminal courts for trial, the legal requirements for the transfer of juveniles to criminal courts, trends in the use of transfer, and the effective- ness of criminal court handling of juveniles. It con- cludes by examining a number of problems associated with the transfer of juveniles to criminal courts.

C O M pa r at i v e f O C u s

Many Countries have a Mechanism Whereby some juveniles May be prosecuted in adult or Criminal Courts

For example, england, Scotland, canada, the Netherlands, New Zealand, Belgium, and Japan make it possible to prosecute certain juvenile cases, such as those involving very serious crimes, in adult courts. however, the ages at which transfer can occur and the types of offenses and other criteria that must be considered prior to transfer vary from country to country. In addition, some countries, such as Denmark and Germany, do not have specialized juvenile justice systems, but youths in those countries are treated more leniently than adults in criminal courts.5

■ the purpose of transfer of juveniles to Criminal Court

Transfer occurs when jurisdiction over a juvenile case is turned over to a criminal court. The waiver or transfer of jurisdiction from juvenile court to criminal court is predicated on the assumption that some juveniles are not appropriate for processing in juvenile court and can be more effectively dealt with by criminal courts. In essence, it is believed that although juve- niles, as a class, are treatable and therefore appropriate for juvenile court handling, particular juveniles, by virtue of their actions, do not merit the protected status given to youths in the juvenile court. Instead, protection of the community from such youths demands that they be identified and transferred to the adult criminal justice system.6 After a juvenile is transferred to a criminal court for trial, the juvenile legally becomes an adult and is subject to the same types of correctional responses as any other adult. A 2012 ruling by the Supreme Court, Miller v. Alabama, however, has indicated that in deciding on how juveniles who commit murder should be punished, their age and other factors should be considered. This bars states from automatically giving juvenile homicide offenders mandatory life sentences without the pos- sibility of parole and is based on the Constitution’s Eighth Amendment, which prohibits cruel and unusual punishment.7 In 2010, in Graham v. Florida, the Court ruled that life sentences for juvenile for crimes other than murder were prohibited under the Eighth Amendment.8

eibell/iStockphoto

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These rulings by the Court, along with a 2005 Supreme Court case, Roper v. Simmons, which made capital punishment unconstitutional for persons under 18 years of age,9 have now placed restrictions on the ability of courts to treat juveniles exactly like adults in all instances without first considering their age and other mitigating factors.

f Y i

the 2005 Roper v. Simmons ruling made persons under the age of 18 the third category of persons, in addi- tion to those who are insane and those who suffer from mental retardation, to be excluded from a sentence of capital punishment.10

In order to determine which juveniles are appropriate for criminal court jurisdiction, states have established various criteria. Typically, the juveniles have to meet certain age and offense criteria. For example, in Michigan, under its traditional waiver statute, a juvenile has to be at least 14 years of age (the maximum age of original juvenile court jurisdiction in Michigan is 17 years) and must be charged with a felony offense before he or she can be waived to criminal court. In addition, a juvenile court hearing must be held to determine if probable cause exists and if transfer of the case to adult court is appropriate.

f Y i until 2005, juveniles COulD reCeive the Death penaltY in the uniteD states

the execution of people younger than 18 years of age is not unprecedented in the United States. Since colonial times, there have been at least 366 executions of juveniles in america, and 22 were carried out between 1973 and 2003.11 however, the constitutionality of capital punishment for juveniles began to be challenged in the late 1980s, when the United States Supreme court heard two landmark cases, Thompson v. Oklahoma (1988) and Stanford v. Kentucky (1989). the effect of these two cases was to ban the execution of youths younger than age 16 years, but permit the execution of those who committed capital offenses when they were age 16 years or older.12 however, in an important 2005 case, Roper v. Simmons, the U.S. Supreme court declared executions of people younger than 18 years of age to be unconstitutional.13 Until that time, the United States was one of the few countries that permitted the execution of persons younger than 18 years of age.14

C O M pa r at i v e f O C u s

several Countries still execute Youths accused of Committing Crimes While they Were Younger than 18 Years

In 2007, three countries, Saudi arabia, Yemen, and Iran, executed persons who committed offenses when they were younger than 18 years old; in 2008, Iran executed two juveniles who were younger than 18 years of age—one juvenile was 16 years old when he was hanged. however, since 2009, Iran is the only country known to have executed youths who were under 18 years of age when they committed a crime; at least two juveniles were executed there in 2011. these executions occurred even though Iran has signed the International convention on civil and political rights and the convention on the rights of the child (crc), which prohibits the execution of persons younger than 18 years of age who commit offenses.15

■ Mechanisms for the transfer of juveniles to Criminal Court

Traditionally, the decision to transfer a case to criminal court was made in a juvenile court hearing. Today, however, there are several mechanisms (i.e., judicial waiver; prosecutorial waiver,

judicial waiver A type of waiver

selected by a juvenile court at a hearing. It is the traditional

type of waiver and is found in most states

and the District of Columbia.

prosecutorial waiver (direct file)

A type of waiver that is within the

power of the local prosecutor or state attorney to choose

and implement.

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or what is sometimes called direct file; and legislative waiver, or what is sometimes referred to as statutory exclusion) by which juvenile cases are transferred to adult courts. Indeed, most jurisdictions have more than one mechanism by which the transfer or waiver of a juvenile case can be achieved. For example, Arizona, California, Florida, Georgia, Louisiana, Okla- homa, and Vermont have all three waiver mechanisms in place. Indeed, almost one-third of the states (and the District of Columbia) have at least two mechanisms by which youths can be transferred to criminal court.16

In most states (Connecticut, Massachusetts, Montana, Nebraska, New Mexico, and New York are exceptions), juveniles can be transferred to an adult criminal court by means of a separate waiver or transfer hearing in the juvenile court to determine the appropriateness of the waiver.17 This method of waiver, which can be called judicial waiver, is the traditional method by which juvenile cases have been transferred to criminal courts. However, the exact process by which judicial waiver occurs and the way in which the waiver hearing in juvenile court is conducted vary from state to state. Nevertheless, these waiver hearings often encompass four elements: (1) a determination of probable cause that the accused juvenile committed the crime(s) charged, (2) a consideration of the potential threat the youth presents to the community, (3) an evaluation of the extent to which the offender is amenable to treatment by existing juvenile justice programs, and (4) a consideration of the types of programs in the adult system that might better meet the juvenile’s needs. In determining the potential threat a youth poses to the community, the court considers the seriousness of the offense and the juvenile’s offense history. In evaluating the extent to which a youth is amenable to treatment, the results of previous juvenile court dispositions and information about existing juvenile justice and adult corrections programs may be examined. However, 15 states that allow for judicial waiver also have presumptive waiver laws. Under these laws, transfer to criminal court for certain offenses is determined to be appropriate unless evidence can be presented to the court to rebut the presumption that transfer should occur.18 Under presumptive waiver laws, the burden is on the juvenile (via an attorney) to demonstrate that he or she should not be waived.

A potential problem with basing waiver decisions on a youth’s amenability to treatment in juvenile justice programs or adult programs is that such determinations can be highly subjective. Even if a youth has reoffended after participating in previous juvenile justice programs, how can one determine that other juvenile justice programs employing different interventions would not be successful? Furthermore, how can one determine the effective- ness of adult programs for juveniles prior to their placement? Such determinations cannot be made based on empirical evidence. Instead, they are predicated on predictions—some of which will invariably be wrong—that judges, attorneys, probation officers, and others make about individual cases.

The initiation of a waiver hearing in juvenile court usually occurs when a prosecuting attorney, believing that the transfer of a case to criminal court is the appropriate course of action, requests such a hearing. The basis of the request may be the violence of the crimes committed, but prosecuting attorneys also seek transfer for nonviolent or even minor acts of delinquency. In a few states, juveniles or their parents may request a waiver hearing.19 One reason a juvenile may ask for a waiver is to ensure that he or she receives due process protec- tions, which may not always be available in juvenile courts.

f Y i

In 2009, 7,642 youths, including seven youths who were under 12 years of age, were transferred to adult court through a judicial waiver.20

direct file See prosecutorial waiver.

legislative waiver A type of waiver that results when certain threshold criteria specified by state laws are met.

statutory exclusion See legislative waiver.

presumptive waiver laws Under these laws, transfer to criminal court for certain offenses is determined to be appropriate unless evidence can be presented to the court to rebut the presumption that transfer should occur.

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f Y i reCent ChanGes in transfer laWs MaKe it easier tO trY sOMe juveniles as aDults

Since 1992, every state except Nebraska has changed its laws regarding transfer to make it easier to try juveniles as adults.21

Since the 1970s, a number of states have developed additional mechanisms for transferring juvenile cases to criminal courts. One of these is referred to as legislative waiver or statutory exclusion. Today, 29 states have passed laws that indicate that youths who meet certain age and/or offense criteria will automatically be tried as adults, thus bypassing the juvenile justice process altogether. For example, in Georgia, New York, and Oklahoma, juveniles who are at least 13 years old and are charged with murder are automatically tried in criminal courts. In Mississippi, juveniles who are least 13 years old and are charged with certain felonies are automatically tried in criminal courts. In other states, juveniles who have reached a certain age and have prior felony adjudications can be excluded from juvenile court jurisdiction.22

There is another way in which legislatures have excluded a large number of juvenile cases from juvenile court jurisdiction. When state laws establish an upper age limit for juvenile court jurisdiction of 15 or 16 years of age, they, in effect, transfer cases to criminal court jurisdic- tion. Indeed, data collected by the National Center for Juvenile Justice indicate that as many as 218,000 youths younger than the age of 18 years were tried in criminal court in 1996 because they were defined as adults under state laws. Unfortunately, there are no national data on the number of juveniles who are transferred to criminal courts by means of these different legisla- tive waiver mechanisms.23 However, because almost 2 million youths who are 16 or 17 years old live in states where the upper age limit of juvenile court jurisdiction is 15 or 16 years of age, a large number of youths are at risk of prosecution in criminal courts because they are defined as adults under their state laws.24

f Y i tYpiCallY, juvenile COurts are less fOrMal than aDult COurts

as noted previously, juveniles who are processed in juvenile courts still do not enjoy all of the due process protections afforded to adults in criminal trials. Indeed, many juvenile courts still operate in an informal manner that would not be acceptable in criminal courts.

A third method of waiver that has become possible in some jurisdictions is prosecutorial waiver or direct file. As of 2005, 14 states and the District of Columbia had passed legislation that makes concurrent jurisdiction possible in some cases. When concurrent jurisdiction exists, the prosecutor is given discretion to file certain cases directly in the adult court when a youth meets certain age and offense criteria.25 For example, in Florida the prosecutor has discretion to file a felony case in either the juvenile or adult court when the alleged juvenile offender has reached 16 years of age. In these instances, original jurisdiction is shared by both the juvenile and criminal courts. In Michigan, prosecutors can waive juveniles at the age of 14 years if they commit specified felonies, including murder, or for a number of other person, property, and drug offenses.26

These newer waiver statutes are supported by legislators who think the juvenile courts are “soft” on youth crime and are intended to circumvent the perceived leniency of the juvenile courts. The existence of different perspectives on juvenile crime is not surprising when one considers that different government entities have different roles and responsibilities, and to some extent, they have different constituencies they must satisfy. For example, the executive

concurrent jurisdiction

Both the juvenile and adult courts

share original jurisdiction. Con-

sequently, in states with concurrent

jurisdiction, pros- ecutors are given discretion to file

cases that meet cer- tain age and offense

criteria in juvenile or criminal court.

218 chapter 9 the transfer of Juveniles to criminal court

F O S T E R , C E D R I C 1 6 9 2 T S

branch is concerned about social control, and the legislature is concerned about being perceived by the community as tough on crime, while courts have to balance community protection, fairness, rehabilitation, and due process. As a result, some see automatic waiver as a tough practical response to serious juvenile crime. Others, however, view it as a politically motivated response that wins votes and upsets the delicate balance of powers among the executive, leg- islative, and judicial branches of government by usurping a role traditionally played by the courts. To see one judge’s perspective on dealing with juveniles, including waiving juveniles to adult court, see Box 9-1.

b O x 9 - 1 InTervIew: The honorable Carolyn wIllIams, PresIdIng Judge, FamIly dIvIsIon, Kalamazoo CounTy CIrCuIT CourT

Q: how long have you been on the bench, and what was your career prior to taking the bench? a: I have served as a juvenile court and family court judge for 18 years. prior to my taking the bench, I was

in private law practice with an emphasis on personal injury defense. this was my second experience in private practice. early in my career, I worked for two years doing criminal defense and plaintiff’s personal injury representation. In between the private practice experiences, I worked for the Department of Social Services as an administrative law judge for 10 years and took time to be a mother to my two sons, who are now grown.

Q: What is your educational background? a: I earned a Ba in political science with an emphasis on international relations from George Washington

University in 1964, and a JD from George Washington University in 1968 that I earned with honors. I am also a graduate of the National Judicial college, where I have also served as a faculty member.

Q: What are the parts of your job that you find particularly rewarding? a: I particularly enjoy those cases in which the parent and/or child have made positive changes that will enable

them to be successful. to have a part in reaching people and helping them to change or, when necessary, motivating them to change is very rewarding.

Q: What are the major challenges that you see the juvenile justice system facing today? a: I see two major challenges: out-of-control children, and the increasing public hostility toward all children

due to this small group that is out of control. Society must recognize the causes for these children being out of control—changing family structure, substance abuse, and domestic violence. Society needs to accept its share of responsibility for this and work toward dealing with the causes. Instead, it seems that the only response by many politicians and the media is open hostility. Society seems to want to focus on punitive sanctions rather than rehabilitative solutions. In an enlightened society, I would hope that we would direct our resources toward early intervention, not toward detention.

Q: as a concept or ideal, do you believe in rehabilitation? a: Yes, absolutely. It is what sets the juvenile/family court apart from the adult criminal system. If there is no

rehabilitation, there is no hope. Interestingly, over the past eight years I have noted an increase in the use of principles of “therapeutic jurisprudence” in both the adult and juvenile justice systems. Michigan now funds specialized courts that focus on helping adults, juveniles, and families deal with drug and alcohol dependence. Other states have created courts that focus on addressing the mental health problems of those people involved with the criminal justice system. communities across the country are also taking responsibility for helping to ensure community safety and offender accountability using principles of bal- anced and restorative justice. Drug courts, therapeutic jurisprudence, [and] restorative justice are all ideas and principles that the juvenile courts have traditionally engaged in even though they may not have been identified using those words or phrases. It is truly gratifying to have been around long enough to see that those principles are now being recognized as important to the adult criminal justice system as they have

(continues)

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There are no comprehensive national data on the number of juvenile cases that are subject to prosecutorial waiver each year. Nevertheless, the number of such cases appears to outstrip the number that are judicially waived. In Florida, where prosecutors are given wide discretion in deciding where to file cases, nearly 5,000 juvenile cases a year were transferred to criminal courts via prosecutorial transfer during the 1990s.27 Moreover, there are indications that in states that have both judicial and prosecutorial waiver mechanisms, prosecutorial transfer accounts for much of the growth in waiver. For example, in 1981, Florida, which has both judicial and prosecutorial transfer mechanisms, filed two cases directly in criminal courts for every case that was judicially waived. However, by 1992, for every case that was judicially

b O x 9 - 1 (ConTInued)

always been in dealing with juveniles. as I said before, and it is as applicable to adults as it is to juveniles, any system that simply locks people away and offers them no hope, no hope of changing their behavior, or reintegrating into society cannot in my opinion be justified or cost effective. Without rehabilitation there is no hope!

Q: Focusing on the issue of transfer or waiver, do you believe that waiver of 13- and 14-year-olds, in general, is a good idea?

a: No, regardless of whatever awful act the child committed, to face a lengthy incarceration in the adult system at that age is “throwing them away” far too soon. children at that age are impulsive. they are not adults; they don’t think like adults, and for the most part, they don’t act like adults. Society needs to focus on giving children chances, not taking them away.

Q: What is your opinion of the concept of waiver or transfer? a: Waiver, plain and simple, is giving up on kids!

Q: What kinds of programming or services do you see serious delinquent juveniles needing? a: this is not my area of expertise, but in my experience, there are some common denominators with children.

at all and any level of treatment, education must be a priority, with dollars spent on technological resources so that the children are receiving a marketable education. Second of all, in view of all the dysfunctional families we deal with, alternative families, foster care homes, and especially group homes are needed. Not only can adults in these homes model healthy relationships, but in group homes, many children feel more comfortable in not having to identify the foster parents directly in competition with their own.

Q: how do you think society should deal with serious and violent delinquents? a: early intervention is key. We must focus resources on parenting education, giving young people reasons

to defer becoming parents, and on preventing those factors in homes that contribute to violent kids and serious delinquents—poverty, substance abuse, and domestic violence. at the other end of the spectrum, we need secure and therapeutic placements for those delinquents who must be separated from society.

Q: Do you think that separate facilities should be built to house these serious delinquents? a: I have no objection to this concept if the goal is rehabilitation with the focus on education, substance

abuse prevention, resocialization, life skills, etc. I would strongly object to any placement where a child was simply warehoused!

Q: What advice would you give to the politicians who are continually calling for stiffer penalties for juvenile offenders?

a: First, I would challenge them to promote community awareness of the underlying causes of delinquency rather than settling for the incarceration alternative. they need to get away from the political rhetoric and the “sound bite” and work at being proactive in their communities. Money needs to be spent on at-risk children at the front end, in their formative years, so that we can avoid the unsocialized, out-of-control juveniles who cause such public outcry. I would recommend a close study of the european child care systems as models for early intervention and socialization.

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waived in Florida, more than six cases were transferred to criminal courts through prosecuto- rial waiver.28 More recent data from 11 states indicate that there were about 4,000 nonjudicial transfers in those jurisdictions in 2005,29 and other data indicate that approximately 250,000 children are prosecuted, sentenced, or incarcerated as adults each year.30 Overall, there is clear evidence that substantial numbers of youths are being transferred to criminal courts each year around the country. The exact numbers of youths being transferred and the effect of these actions on the youths involved, their families, and the communities in which they live deserve closer examination.

■ trends in the use of transfer

Since the mid-1970s, state legislatures have taken steps to expedite the transfer of juveniles to criminal courts.31 Typically, states have made it easier to transfer youths to criminal court by taking the following actions: (1) enacting statutory exclusions, (2) lowering the minimum age for waiving youths, (3) expanding the range of offenses that can result in transfer, or (4) making judicial waiver presumptive32 (i.e., where transfer for certain cases is assumed unless there are clear grounds for handling the case differently, and the burden of proof for keeping the case in the juvenile court falls on the juvenile). By 1999, 29 states had passed legislative transfer (statutory exclusion) statutes that exclude some offenses from juvenile court jurisdiction. Moreover, other states have expanded the number of offenses excluded from juvenile court jurisdiction. In 15 states, prosecutors have become more prominent players in transfer deci- sions because of the enactment of prosecutorial transfer (concurrent jurisdiction) laws that allow them to decide whether to file certain cases in the juvenile court or the criminal court, and 29 states have enacted statutory exclusion.33 As a result, there has been an expansion of the mechanisms by which juveniles can be transferred to criminal court in a number of states.

Historically, transfer to criminal court was a judicial decision, and the burden was on the prosecution to demonstrate that a youth was not amenable to treatment in the juvenile justice system and that the adult system held more promise. However, recent changes in juvenile codes around the country have not just expanded the number of mechanisms by which juve- niles can be tried in adult courts, but in many respects they have simplified the process. The implementation of presumptive waiver statutes in a number of states means that certain cases are appropriate for waiver even when it is a judicial decision, and the burden is now on the defense to demonstrate that a juvenile program is more suitable for the youth and that the adult system is inappropriate. And as Patrick Griffin notes in his review of juvenile transfer, under direct file statutes, decisions for transfer are given to an elected public official, the prosecutor, but states rarely provide guidance or establish strict criteria for waiver, nor do they provide incentives for using waiver sparingly.34 Moreover, as Griffin goes on to note,

Because no hearing is held and no evidentiary record created, defendants have no opportunity to test the basis for transfer decisions or to present counter-evidence of their own. And afterwards, there is nothing to review to determine whether decisions were made appropriately. As a result, prosecutorial discretion laws in some places may operate more like statutory exclusions, sweeping wholesale categories [of youth] into criminal court, with little or no individual consideration.35

In addition, the implementation of legislative waiver or statutory exclusion in many states means that for some categories of youth offenders, their cases automatically go to criminal courts. The result of presumptive waiver, direct file, and statutory waiver has been to shift much of the authority over waiver in many states to the prosecutor and away from judges,36 or to circumvent the authority of the juvenile court completely.

As a result of the increased emphasis placed on “getting tough” with juvenile crime in some jurisdictions and the enactment of laws making it easier to transfer juvenile cases to adult criminal courts, there was a substantial increase in the number of juveniles tried in criminal courts beginning in the 1970s and continuing through the mid-1990s.37 Between 1985

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and 1994, the number of cases judicially waived to adult courts increased by 91%, from 7,229 to 13,843 cases.38 After 1994, however, the number of judicial waivers began decreasing and stood at 7,642 by the end of 2009.39 Although the number of judicial waivers declined by 91% between 1994 and 2009,40 the increased use of other means to transfer youths to criminal courts has likely resulted in an increase in the number of youths who are being subjected to adult sanctions. Indeed, a study of waivers in 18 jurisdictions found that 85% of the decisions to try youths as adults were not made by judges, but resulted from statutory exclusion or prosecutorial discretion.41 Thus, estimating the number of juveniles being tried as adults by examining only those youths who are transferred by juvenile courts through judicial waiver grossly underestimates the number of youths being tried in criminal courts.

Not only has there been a substantial change in the number of juvenile cases transferred to criminal courts, but the types of cases transferred to criminal courts, at least via judicial transfer, have also changed over time. In 1985, property offense cases were the most likely to be judicially transferred, but by the mid-1990s, the largest group of cases transferred involved offenses against people, a trend that continued through at least 2009 (see Table 9-1). Still, person offense cases accounted for less than half (46%) of judicially waived cases in 2009. In that year, property offenses accounted for 31% of all cases judicially waived, whereas drug offenses accounted for 13% and public order offenses 10%.42

M Y t h v s r e a l i t Y

Myth—Only the most serious juvenile offenses result in transfer to criminal court. reality—Less than half of juvenile cases referred to criminal courts each year by judicial waiver involve offenses against persons.

Although the profile of cases being transferred by juvenile courts has changed over time, the gender and racial characteristics of youths who are waived have not. Currently, as in the past, youths who are transferred to adult courts are disproportionately male and they are dis- proportionately members of minority groups. For example, in 2009, males made up 89% of the cases that were judicially waived to adult courts. Also, African American youths accounted for 38% of the persons younger than 18 years of age who were waived to adult court, but they comprised only about 16% of the population 10 through 17 years of age. In addition, Native American youths accounted for almost 3% of the cases waived to adult court, but they made up just over 1% of the population between 10 and 17 years of age.43

Table 9-1 number and percentage of juvenile Cases transferred to Criminal Court by judicial Waiver, selected Years, 1985–2009

Offense 1985 1994 2001 2009

person 2,410 (33.3%) 5,787 (41.8%) 3,355 (41.5%) 3,534 (46.2%)

property 3,828 (53.0%) 5,204 (37.6%) 2,706 (33.5%) 2,336 (30.6%)

Drugs 354 (4.9%) 1,620 (11.7%) 1,209 (14.9%) 978 (12.8%)

public order 637 (8.8%) 1,232 (8.9%) 817 (10.1%) 794 (10.4%)

total 7,229 13,843 8,087 7,642 Source: Data from Sickmund, M., Sladky, a., & Kang, W. (2012). Easy Access to Juvenile Court Statistics: 1985–2009. retrieved from http://www.ojjdp.gov /ojstatbb/ezajcs/.

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http://www.ojjdp.gov/ojstatbb/ezajcs

M Y t h v s r e a l i t Y

Myth—Minority youth account for the majority of youths transferred to criminal courts each year through judicial waiver. reality—the majority of youths transferred to criminal courts each year via judicial waiver are white. In 2009, for example, white youths accounted for 58.4% of the youths transferred to criminal courts through the traditional judicial waiver process.44 however, it should be noted that the racial and ethnic characteristics of all juveniles transferred to criminal courts each year by all forms of waiver is not known.

f Y i a substantial nuMber Of ChilDren are prOseCuteD in aDult COurts eaCh Year

as previously noted, comprehensive data on the number of persons younger than 18 years of age who are tried in adult court each year are not available. Nevertheless, a study conducted by amnesty International in the late 1990s estimated that more than 200,000 juveniles were being tried as adults each year.45

f Y i a laCK Of Data On YOuth ethniCitY is a prObleM

a lack of data on the ethnicity of youths handled by juvenile courts makes it impossible to evaluate the dif- ferential treatment of some ethnic groups in the juvenile justice process. Moreover, it should be kept in mind that terms like “hispanic” and “asian” are used to refer to a wide variety of ethnically diverse groups and may mask how subpopulations within these broader categories of persons are treated.

■ Due process and transfer Decisions

As discussed previously, the first juvenile court case that drew U.S. Supreme Court attention, Kent v. United States, addressed the issue of transfer. In this case, Morris Kent, a juvenile, was transferred to adult criminal court without a hearing or any formal notice. In its opinion, the Court set forth minimum due process standards for a valid waiver:

• Any juvenile facing waiver is entitled to an attorney. • The juvenile is entitled to a meaningful hearing, even if it is informal and off the record. • The juvenile is entitled to access any reports, records, and so on used by courts in

deciding waiver. • The juvenile is entitled to know the reasons for the waiver decision. The first requirement speaks for itself. A meaningful hearing is one in which the juvenile

can present evidence, challenge evidence against him- or herself, and do this all before an impartial decision maker. This requirement is consistent with the court allowing the juvenile to challenge reports or other information that purport to be the basis for waiver. However, the Supreme Court did not require the hearings to be “on the record,” and thus transcripts that indicate in detail what went on in the waiver process may not be available. Nevertheless, the Court did require a “statement of reasons” for waiver, and this could form the factual basis for an appeal.

Due to the serious nature of waiver cases, it is not surprising that the Supreme Court has heard other cases that involve this issue. One of these was Breed v. Jones (1975).46 In this case,

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a 17-year-old, accused of armed robbery, was adjudicated to be a delinquent at an adjudication hearing in juvenile court. Two weeks later, but before deciding on any sentence or disposi- tion, the juvenile court determined at a “fitness” hearing that the juvenile was not amenable to juvenile court “care, treatment, and training” and ordered the juvenile to be prosecuted as an adult. At the subsequent adult trial, the juvenile was convicted of first-degree robbery.

In its decision, the Supreme Court held that the juvenile had been “put in jeopardy” at the original juvenile court adjudicatory hearing and that, once found within the jurisdiction of the juvenile court, he could not then be tried as an adult for the same offense. To try him as an adult would be a violation of his right to be free from double jeopardy. Breed v. Jones had several ramifications. First, and most important, the Court required the state to choose waiver “up front” in the process, prior to any juvenile court adjudication, denying the state multiple opportunities to try juveniles. Second, the Supreme Court recognized the seriousness of a juvenile court adjudication and gave it the same status afforded criminal trials for the purposes of double jeopardy protection. Third, the decision emphasized the importance of the transfer or waiver hearing in the juvenile court process because these hearings determine the possible sanctions that may be imposed on juveniles.

■ research on the use and effectiveness of transfer

Despite the importance of transfer and its long history of use in juvenile justice, there has been relatively little research devoted to the way transfer is used in different jurisdictions around the country and the effectiveness of transfer decisions.

the use of transfer

Although there is much about transfer that is not known, there is clear evidence that the use of transfer varies considerably across jurisdictions. Some jurisdictions are much more likely to transfer juveniles to adult courts than other jurisdictions. A study by Barry Feld found that juvenile court judges exercised considerable discretion in making transfer decisions and did not administer transfer statutes in an evenhanded manner. According to Feld, “Within a single jurisdiction, waiver statutes are inconsistently interpreted and applied from county to county and from court to court.”47 Another study, done by Tammy Poulos and Stan Orchowsky, examined transfers in Virginia and found that juvenile offenders in metropolitan areas were less likely to be transferred than those whose cases were processed in nonmetropolitan juve- nile courts. Although the authors were not able to provide a definitive explanation for their findings, they noted the following:

Juvenile court judges serving metropolitan jurisdictions may be less likely to send young offenders to the criminal courts for a number of reasons. Because they see so many serious offenders, their threshold for defining an offense as serious enough to warrant transfer may be higher than that of their rural counterparts. On the other hand, metropolitan judges may have at their disposal more dispositional options at the juvenile court level than their rural counterparts and thus rely less heavily on the last resort of transfer.48

Although one might expect that the level of serious crime in a jurisdiction has a direct influence on the number of juvenile cases waived to criminal courts, research indicates that the use of transfer is determined by a variety of factors. Likely candidates for transfer include juveniles who commit serious offenses such as murder, manslaughter, and rape; juveniles who sell drugs; older juveniles who use firearms in the commission of crimes and have prior records; and juveniles with lengthy juvenile court histories.49 A study that examined waiver in Maricopa County, Arizona, found that previously being waived was the strongest predic- tor of transfer.50

There is evidence that the increased use of transfer in some jurisdictions is a reflection of the growing popularity of a more punitive model of juvenile justice reflected in the desire of

double jeopardy As applicable to

transfer cases, a principle that

requires the state authority to choose

at the outset whether a juvenile is to be tried as a juvenile

or as an adult. The choice must be made

at the preliminary hearing or arraign-

ment stage of the proceedings.

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political decision makers to appear tough on juvenile crime, rather than a direct response to higher levels of serious juvenile offending. After examining the case histories of 214 juveniles transferred to criminal court and interviewing key juvenile justice decision makers, M. A. Bortner concluded that organizational and political factors accounted for high rates of transfer. Bortner stated the following:

Although remand represents a course of action ostensibly directed toward protection of the public, it is a policy integrally related to the juvenile system’s interest in organizational maintenance. . . . Remand protects institutional authority by removing cases from juvenile court responsibility, thus reducing potential organizational troubles and public criticism that might damage institutional legitimacy. . . . In an era of fiscal uncertainty when the juvenile justice system is confronted with the necessity of reasserting its worth, maintaining its uniqueness, and redefining its mission, remanded juveniles provide a symbolic avenue for the reaffirmation of the juvenile system’s commitment to public safety and rehabilitation for most juveniles. In evidencing a willingness to relinquish its jurisdiction over a small percentage of its clientele, and by portraying these juveniles as the most intractable and the greatest threat to public safety, the juvenile justice system creates an effective public gesture of retribution and punishment in the name of responsiveness to public concerns. . . . The present analysis suggests that political and organizational factors, rather than concern for public safety, account for the increasing rate of remand.51

Much less is known about the types of cases that are being waived under prosecutorial and legislative transfer laws than about judicially transferred cases. What is known is that the pros- ecutorial and legislative transfer statutes enacted in many states have resulted in more youths being subjected to criminal court processing.52 In addition, there is research indicating that, at least in some jurisdictions, a large percentage of those transferred by prosecutorial transfer are nonviolent offenders. In a study of felony cases from a nationally representative sample of 300 counties, some of which were transferred by prosecutorial and legislative waiver statutes, it was discovered that only 53% of the cases transferred to and convicted in adult court involved violent offenses. In this study, 24% of criminal court convictions involved property offenses, 13% were drug offenses, and 10% involved other offenses.53 In another study of prosecutorial waiver in two Florida counties, Donna Bishop and her colleagues found that, despite the fact that prosecutors indicated that the youths who were transferred were dangerous offenders, only 29% had committed a violent felony.54 In fact, the majority (55%) had committed property felonies. Moreover, Bishop and her colleagues found that the tendency had been for prosecu- tors to transfer greater proportions of nonviolent offenders, particularly youths charged with felony drug offenses, and misdemeanants over time. After examining the characteristics of juveniles transferred in the two counties they studied, Bishop and her colleagues concluded that “few of the juveniles transferred to criminal court via prosecutorial waiver would seem to be the kinds of dangerous offenders for whom transfer is most easily justified.”55

f Y i effOrts tO “Get tOuGh” With juveniles COntinue

there is no evidence that juvenile crime has become significantly more serious over time. Indeed, arrests of youths younger than 18 years of age for Index violent offenses have been declining since 1994. however, efforts to develop more punitive responses to juvenile crime, including the development of additional mechanisms for waiving juveniles to criminal courts, began in the mid-1970s and continue today.

the effectiveness of transfer

A common argument supporting the transfer of juveniles to criminal courts is that it serves as a tougher response to serious juvenile offenders, and it is more likely to protect community safety than juvenile court processing. As noted earlier, however, the juveniles who are transferred

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to criminal courts are not always serious or violent offenders. This section examines transfer outcomes and the extent to which transfer is an effective way to protect community safety.

Early research on transfer indicated that when juvenile offenders were transferred to criminal court, they were often treated leniently. One suggested explanation for the lenience was that the juveniles who appeared in adult courts were often young and were seen as first- time offenders.56 In a 1978 national survey of the transfer of juveniles to criminal courts, Donna Hamparian and her associates found that only 46% of cases waived by juvenile court judges and 39% of cases transferred to criminal court by prosecutorial waiver resulted in a criminal court sanction that involved incarceration.57 Similarly, Bortner’s study, which looked at 214 juveniles waived in a western state, found that 63% of juveniles whose cases were waived received probation. Indeed, only 32% of the juveniles whose cases were waived received jail or prison sentences, 1% were given fines, and 4% had their cases dismissed.58

Although many juveniles transferred to adult courts have been treated leniently, others are treated more harshly than similar offenders in juvenile court. In some jurisdictions, incar- ceration, not leniency, appears to be the norm. For example, a study conducted by Rudman, Hartstone, Fagan, and Moore looked at 138 youths who were charged with violent offenses and were considered for transfer between 1981 and 1984 in Boston; Newark, New Jersey; and Phoenix. They found that 94% of these youths were convicted of violent crimes in criminal court and that 90% of the convicted youths were incarcerated. Moreover, they found that, among youths who were sentenced to a period of incarceration, those convicted and sentenced in adult courts received substantially longer sentences than those convicted and sentenced in juvenile courts.59 Likewise, a study by Jeffrey Fagan that compared 15- and 16-year-old felony offenders in New York (where they are excluded from juvenile court jurisdiction) to similar youths in New Jersey (where they are under juvenile court jurisdiction) found that youths in New York were more likely to be incarcerated.60

Studies that have examined transfer indicate that there is considerable variability in how youths are treated when they are convicted in adult courts. The exact reasons for this are not completely clear, but it may be due in large part to the types of offenses juveniles are charged with. In the studies by Hamparian and colleagues and by Bortner, many of the youths trans- ferred to criminal court were property offenders. In contrast, the youths transferred to criminal court in the study by Rudman and colleagues were convicted of violent offenses. This suggests that if juveniles are transferred to adult courts for minor property offenses, they are likely to be treated leniently, but if they are transferred to adult courts for serious offenses against persons, they are likely to receive severe sanctions.

There is clear evidence that juveniles who are transferred to adult court are often treated more severely than juveniles who have committed similar offenses but are tried in juvenile courts. There is also evidence that juveniles are sometimes treated more severely than adults who have committed similar offenses. Indeed, in the research study noted earlier that examined juveniles convicted of felonies in criminal courts, juveniles who were convicted of murder were actually sentenced to longer prison terms than older people convicted of the same offense.61 A study by Megan Kurlychek and Brian Johnson that compared the sentencing outcomes of juveniles and young adult offenders tried in adult courts in Pennsylvania found that juveniles received more severe sentences, particularly in cases involving violent crime. Moreover, they found that legal variables like offense seriousness and prior record played a smaller role in juvenile sentencing outcomes compared with those of young adults. Their research suggests that youths tried in adult court face a “juvenile penalty” that leads to more severe treatment.62 Similar results were also found by Benjamin Steiner in a study of waiver in 37 urban counties that compared sentencing of transferred youths in adult courts to adult defendants 29 years and younger. Steiner found that transferred youths were more likely to be sentenced to prison than young adult defendants in the urban counties he studied. In addition, he found that structural

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disadvantage in the community, particularly the proportion of divorced and separated adults and the percentage of single parents with children in the community, was related to increased use of incarceration for transferred youths and young adults.63

Although youths who are transferred to criminal court may be treated more severely than young adults in those courts, they are not always treated more severely than similar youths who are adjudicated in juvenile courts. Indeed, in some instances, juveniles receive more severe dispositions in juvenile courts. Jeffrey Fagan found that in 1981 and 1982, youths processed in juvenile courts in New Jersey were half as likely to receive sentences mandating incarcera- tion as youths of a similar age convicted in adult courts in New York. For example, 18% of the youths convicted of robbery in New Jersey juvenile courts were incarcerated, compared with 46% of youths convicted of robbery in criminal courts in New York. However, Fagan found that in 1986 and 1987, juveniles convicted of robbery in New Jersey were more likely to be incarcerated than those handled in New York. During those two years, the percentage of juveniles convicted of robbery who were incarcerated in New Jersey increased to 57%, compared with 27% for New York.64 In another study comparing youths processed in juvenile courts and those tried in criminal courts, the researchers found that, on average, criminal courts sanctioned offenders more severely for the same offense. However, the researchers also discovered that the differences were due, in part, to differences in the prior records of the offenders. What they discovered was that youths who had prior records and whose cases were adjudicated in juvenile courts were treated far more severely than youths with prior records who were tried in adult courts.65

M Y t h v s r e a l i t Y sOMetiMes juveniles are treateD MOre harshlY than aDults

Myth—Juveniles are able to use their youth as a mitigating factor to convince courts that they should not be punished for serious offenses, which results in the lenient treatment of serious juvenile offenders. reality—Like some adults, juveniles are sometimes treated leniently for serious offenses. however, it also should be noted that youths’ age is sometimes used as an aggravating factor (i.e., a “juvenile penalty”) that paints them as very dangerous offenders and results in punishments that are more severe than those some- times given to adults. this occurs when juries or hearing officers are convinced by prosecutors that if a youth has committed a serious offense as a juvenile, he or she will likely be even more dangerous in the future.66

M Y t h v s r e a l i t Y YOuths MaY Or MaY nOt be treateD harshlY bY aDult COurts

Myth—Youths who are transferred to criminal courts typically receive severe sanctions, such as long periods of incarceration. reality—Many youths transferred to criminal courts are treated severely and receive longer periods of incar- ceration than similar youths convicted in juvenile courts.67 however, many others are treated leniently and even receive probation.68 the differences in treatment may be due to differences in the types of offenses. courts may be likely to treat juveniles who have committed violent offenses more severely than juveniles who have committed minor offenses. these courts appear willing, however, to treat youths severely when they have committed violent offenses.

Also, it is worth noting that the research evidence on transfer does not demonstrate that public safety is enhanced by waiver, nor does it clearly show that alternative treatments are usually exhausted before youths are transferred to criminal court.69 Even when youths are

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subjected to incarceration by criminal courts, there is little evidence that the punishment has a deterrent effect. In two recent reviews of the research on the effectiveness of transfer, the researchers concluded that transfer to criminal court is related to increases in recidivism.70 In the most recent of these reviews, Richard Redding noted the following:

In sum . . . six large-scale studies have been conducted on the specific deterrent effects of transfer. These studies used large sample sizes (between 494 and 5,476 participants), different methodolo- gies . . . multiple measures of recidivism, and were conducted in five jurisdictions (Florida, New Jersey, New York, Minnesota, Pennsylvania) having different types of transfer laws (automatic, prosecutorial, judicial). . . . All of the studies found higher recidivism rates among offenders who had been transferred to criminal court, compared with those who were retained in the juvenile system. This held true even for offenders who only received a sentence of probation from the crimi- nal court. Thus, the extant research provides sound evidence that transferring juvenile offenders to the criminal court does not engender community protection by reducing recidivism. On the contrary, transfer substantially increases recidivism.71

According to studies by Donna Bishop and her colleagues, not only is there evidence that transferred youths have a higher recidivism rate, but they are more likely to be rearrested for more serious offenses and to be rearrested within a shorter time frame than youths who are processed in juvenile court.72 In short, the research suggests that, in general, juvenile court sanctions appear more effective than criminal court sanctions.

■ Other Developments in the use of transfer

Designation

In addition to the passage of prosecutorial and legislative transfer laws, states have implemented other laws and procedures related to the transfer of juveniles to adult court. Michigan has developed an alternative to prosecutorial waiver called designation that allows a juvenile to be tried in juvenile court in the same manner as an adult is tried in criminal court, including having a probable cause, preliminary-type hearing, judgment by a jury of 12, and a formalized sentencing hearing. A juvenile can be designated in two ways. The prosecutor can designate a youth who has committed a “specified juvenile violation,” or the court itself can designate a youth for any other delinquent offense. If the prosecutor designates, then the juvenile is on the criminal track. If the court designates, then the juvenile is entitled to a designation hearing to contest the referral to the criminal track. At a designation hearing, the court is required to balance the best interests of the juvenile and the public by considering a variety of factors, such as the seriousness of the offense, the culpability of the juvenile committing the offense in light of aggravating or mitigating factors, the juvenile’s prior delinquency record, the juvenile’s history in previous correctional programs, the adequacy of the punishments and/or programs available in the juvenile justice system, and the different disposition options available to the court. These are essentially the same factors that the juvenile court would consider in deter- mining the appropriateness of judicial waiver.

After designation, the juvenile essentially has an adult criminal trial in juvenile court, with all of the accompanying due process rights. Upon conviction, the juvenile court has to hold a sentencing hearing to review the available alternatives. These include the following options:

• sentencing the juvenile as a juvenile • sentencing the juvenile as an adult • sentencing the juvenile on a delayed basis (if the disposition is not successful, the court

can re-sentence the juvenile as an adult) • sentencing the juvenile to a boot camp for a period of 90–180 days, with 120–180 days

in aftercare

designation An action by a pros-

ecutor or juvenile court that makes

available adult court sentencing alterna-

tives even though the juvenile is being

tried under the jurisdiction of the

juvenile court.

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In order to impose a delayed adult sentence, the court must hold a hearing in which the rehabilitation of the juvenile is balanced against the juvenile’s risk to public safety. The court is required to consider the following factors at the sentence review hearing:

• the extent of the juvenile’s conformity to the directives in the original disposition, including participation in education, counseling, work programs, and so on

• the juvenile’s willingness to accept responsibility for his or her delinquent behavior • the juvenile’s behavior in his or her current placement • the juvenile’s prior record, character, and physical and mental maturity • the juvenile’s potential for violent conduct, as shown by prior behavior • recommendations from the caretaker institution • other information submitted by the juvenile and/or the prosecutor Certainly, designation gives the juvenile court another option in dealing with serious

juvenile offenders. One of the concerns about the Michigan statute, however, is that there is no lower age limit for designation. In other words, a juvenile of any age can be designated. Although designation became effective January 1, 1997, it does not appear to be widely used. Moreover, to date there has been no evaluation of its effectiveness.

reverse Waiver

At least 25 states have reverse transfer laws that make it possible to transfer juvenile cases from adult court to juvenile court.73 This makes it possible for the criminal court to transfer cases to juvenile court that have been initially waived via prosecutorial transfer, legislative waiver, or, in some cases, judicial transfer. Generally, reverse waiver occurs after a hearing in crimi- nal court where the criminal court judge considers the appropriateness of handling the case in criminal court or in the juvenile court. At this hearing, the adult court employs the same “best interest” standards used in juvenile courts to determine the appropriateness of transfer to the criminal court.74 However, at least two related problems are likely to affect many youths seeking reverse waiver. First, youths who lack economic resources are not likely to have the legal assistance necessary to seek a reverse waiver. Second, effective legal counsel will almost always be required in these cases because a petition for reverse waiver must be filed within a specific time frame and the burden of proof needed to support a transfer back to juvenile court falls on the youth. Without effective counsel, presenting “clear and convincing evidence” that the case should be transferred to juvenile court will be difficult.75

Once an adult, always an adult

At least 34 states have “once an adult, always an adult” requirements built into state law. Almost all of these states’ laws contain provisions that indicate that the youth must be convicted of the initial offense that resulted in waiver for the “once an adult, always an adult” provision to be in effect.76 In contrast, in some states (e.g., California, Delaware, and Mississippi), a convic- tion on the initial charge is not always necessary. Also, some states (e.g., Iowa, Michigan, and Texas) mandate that certain offenses (e.g., felonies) must be heard in adult court after a youth has been found guilty in adult court on a previous charge.77

blended sentencing/Determinate sentencing

A number of states also have blended sentencing/determinate sentencing provisions that allow either the juvenile court or the adult court to render a disposition that involves placement in a juvenile or adult correctional institution or both. These laws have often resulted from concerns over perceived increases in serious juvenile crime and a belief that young juvenile offenders who commit serious offenses need additional supervision beyond that normally provided by

blended sentencing Allows either the juvenile court or the criminal court to impose a disposi- tion that involves placement in a juvenile correctional institution or an adult institution, or to serve periods in both juvenile and adult programs.

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the juvenile court.78 Under blended sentencing or determinate sentencing options, depending on the state, either the juvenile or criminal court can sentence youths to longer periods in juvenile facilities than was traditionally possible under previous law, can sentence a youth to placement in an adult facility, or can sentence a youth to a juvenile facility for a period of time followed by placement in an adult facility. For example, under Texas’s determinate sentencing law, youths can be sentenced for up to 40 years’ incarceration by the juvenile court. They would serve their sentence in juvenile facilities operated by the Texas Youth Commission until they reach their 18th birthday, at which time they would be transferred to the Texas Department of Corrections to serve the remainder of their sentence.79

■ standards Governing transfer Decisions

Although there has been a recent trend toward making it easier to transfer juveniles to adult courts, the transfer of many nonviolent juvenile offenders to criminal court appears to be encouraged by a lack of clear standards for transfer decisions in some jurisdictions.80 In their study of prosecutorial waiver in Florida, Bishop and her colleagues found that most juvenile division chief prosecutors had not established formal policies to guide transfer decisions. Instead, they relied on informal guidelines to direct the waiver decisions made by attorneys under their supervision. Moreover, many of the prosecutors indicated that they thought the standards used by other division chiefs to limit attorney discretion were too low.81

The available evidence suggests that the increased use of transfer to criminal courts is the product of a number of factors. To some extent, the increased use is likely due to peri- odic fluctuations in the incidence and seriousness of juvenile crime and the difficulty that overburdened and underfunded juvenile justice agencies have in dealing with the juvenile crime problem. It is also likely due, in part, to the perception that the juvenile courts do not impose severe enough sanctions on some juvenile offenders and that they often lack reliable data information systems capable of tracking offenders involved in serious and repetitive criminality.82 In addition, factors such as offense seriousness, age, offense history (including a history of previous waiver), a lack of clear criteria for transfer, and a desire among policy makers to appear tough on juvenile crime have also contributed to the increased use of transfer as a response to juvenile crime.83

M Y t h v s r e a l i t Y Waiver laWs appear tO DO little tO Deter juvenile CriMe

Myth—threatening youths with waiver and sending more youths to adult courts will deter youths from delin- quent behavior. reality—Studies that have examined the potential deterrent effects of state transfer laws have failed to find that they deter juvenile crime.84

■ Correctional programming for juveniles Convicted in Criminal Court

The increase in the number of adolescents being subjected to incarceration in adult correctional facilities has, in some instances, led states to develop additional strategies for handling young offenders. Moreover, in some jurisdictions, the increase in the number of juvenile offenders tried as adults has placed pressure on those who are responsible for the development of adult institutional correctional policy to implement programs that better respond to the needs of youthful prisoners, who are typically more vulnerable than inmates traditionally handled by these facilities. Around the country, four basic approaches to responding to adolescent offend- ers sentenced to periods of incarceration in the adult system currently exist: (1) straight adult

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incarceration, (2) graduated incarceration, (3) segregated incarceration, and (4) the designation of certain offenders as youthful offenders.85

straight adult incarceration

Most states make it possible to place juveniles who are sentenced as adults in adult correctional facilities, either with young adult offenders or in the general correctional population, provid- ing the juvenile has reached a certain age (e.g., in North Dakota and California, a youth must be at least 16 years old to be placed in an adult correctional facility). Only six states (Arizona, Hawaii, Kentucky, Montana, Tennessee, and West Virginia) prohibit the placement of juveniles in adult correctional facilities or require juveniles to be segregated from adults.86 At mid-year 2010, counts of state prison and jail inmates indicated that there were 7,560 persons younger than 18 years of age being held in local jails and another 2,295 incarcerated in state prisons.87

Although state laws prohibit children from voting, smoking, drinking alcohol, buying a car, or serving in the military, laws in many states also indicate that these same children are not too young to be treated as adults and serve time in adult prisons for violat- ing criminal laws. Although many youths who are sentenced as adults have committed serious offenses, including murder, treating them as adults raises a number of important questions. Is sentencing a youth to life in prison, with little or no hope of parole, justi- fied? Can placing a youth in an adult correctional facility be justified based on the youth’s threat to society or because there is evidence that the youth can never be rehabilitated? Is it in the best interest of society for young people to do “adult time?” For all of the juveniles sentenced to adult prisons, what can they expect from their prison experience? These questions need to be answered in order to understand the intended and unintended consequences of placing juveniles in adult prisons.

f Y i the nuMber Of persOns YOunGer than 18 Years inCarCerateD in state institutiOns peaKeD in 1995. sinCe 1995, hOWever, it has been DeCreasinG.

at mid-year 1995, there were 5,309 persons younger than the age of 18 years who were incarcerated in state prisons. however, this number had dropped to 2,295 by mid-year 2010.88

As long ago as 1980, in the case of United States v. Bailey, United States Supreme Court Justice Blackmun noted:

The atrocities and inhuman conditions of prison life in America are almost unbelievable; surely they are nothing less than shocking. . . . A youthful inmate can be subjected to homosexual gang rape his first night in jail, or, it has been said, even in the van on the way to jail.89

Many people are concerned about preventing child abuse and child pornography and protecting children from materials with sexual content, yet many of these same individuals seem to be less concerned about protecting children from sexual exploitation in prison.90 Should children forfeit some of their fundamental rights as human beings if they are sentenced as adults?

Prison rape not only causes victims to act out their pent-up rage and powerlessness on other inmates or in society when they are released, but it may increase the likelihood of sui- cide, the transmission of sexually transmitted diseases, psychosis, or other mental disorders.91 Clearly, young children are at risk of physical, emotional, and mental trauma as a result of

graduated incarceration An incarceration strategy according to which a convicted juvenile begins his or her sentence in a juvenile facility and then moves to an adult facility upon reaching the appro- priate age.

segregated incarceration The practice of providing a separate correctional facility designated for juve- nile offenders within the adult justice system.

youthful offender A special legal status existing in some jurisdictions that allows young offenders to receive special consideration as regards sentenc- ing, privacy, and rehabilitation, even as first-time adult offenders.

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abuse by adult inmates. There is also disturbing evidence that they may be at greater risk than adults of being beaten and abused by guards and other staff92 and being sexually victimized in adult facilities.93 As will be discussed later, juveniles, when incarcerated in juvenile facilities, have a right to treatment. Under the traditional theory of parens patriae, does the obligation of the state to provide treatment to juveniles disappear because they have been sentenced as adults? Clearly, equal protection considerations are present when children are sentenced to adult prisons, victimized, and not cared for.

Another issue that comes to the forefront in examining the implications of children sen- tenced as adults is the legal issue of competency to stand trial as an adult. In an adult criminal prosecution, it is an established legal principle that a defendant must be capable of meaningful participation in his or her defense. This means several things:

1. The defendant must have sufficient ability to consult with his or her attorney. 2. The defendant must have a reasonable degree of understanding of what his or her attorney

is communicating to him or her. 3. The defendant must have a reasonable, rational understanding of the charges against him

or her. 4. The defendant must demonstrate a reasonable and rational understanding of the proceed-

ings against him or her.94

What this indicates in practical terms is that the defendant must be able to communi- cate with his or her attorney and understand what the attorney is advising. The defendant must be able to understand his or her individual rights and be able to make decisions about exercising them or not exercising them during the various stages of the criminal process and trial. However, many youths involved in the juvenile and criminal justice process suffer from developmental delays, inexperience in making life-affecting decisions, and lack of life experience, which may affect their competency in a criminal trial.95 For example, most adult defendants understand that legal rights are something that they are “entitled” to, but many youths view these “rights” as “conditional” because youths often believe that these rights can be retracted by the authorities at their discretion.96 Many states have assumed that juveniles who are “experienced” in the juvenile justice system are likely to have a better understanding of court procedures. However, current research does not support that presumption. Some children learn from past experience, but many do not.97

As mentioned before, decision making is crucial to a criminal defense. A very important element of decision making is the ability to foresee the consequences of a potential decision. Therefore, defendants must “be able to imagine hypothetical situations, envisioning condi- tions that do not now exist and that they have never experienced.”98 However, this skill or ability requires life experience that young children do not have. This ability only begins to develop in preadolescence; for youths with learning disabilities or other mental health issues, this ability would be delayed even further. Consequently, courts need to be aware of this seri- ously important issue of competency, provide meaningful evaluations for juveniles charged as adults, and allow legal findings of incompetency caused by developmental immaturity. Courts should also require a higher threshold for competency for juveniles being tried as adults.99

Graduated incarceration/blended sentencing/Determinate sentencing

Another process that has the same effect as transfer and is used in a number of states is graduated/blended/determinate sentencing. Blended sentences may be imposed by either a juvenile court or an adult court. Juvenile blended sentences are available in 15 states and allow juvenile courts to impose a combined juvenile disposition and a suspended criminal sentence for youths who meet certain age and offense criteria. Eleven of the 15 states (Alaska, Arkan- sas, Connecticut, Illinois, Kansas, Massachusetts, Michigan, Minnesota, Montana, Ohio, and Vermont) that have this option use an inclusive model of blended sentences. In these states,

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juveniles are given a juvenile disposition as well as an adult sentence; however, the adult por- tion of the sentence can be suspended, provided that the youth meets certain conditions such as successfully completing the juvenile court disposition. In four states, a contiguous model of blended sentencing is used. In three of these states (Colorado, Rhode Island, and Texas), youths are sentenced to periods of incarceration that exceed the juvenile court’s age of maxi- mum jurisdiction. In these states, youths begin their incarceration in a juvenile facility until a specified age, usually 18 years, at which time they may be transferred to a traditional adult facility to serve out the remainder of their sentences or they may be released. In one state (New Mexico) that uses a type of contiguous model, the juvenile court judge has the option of imposing an adult sentence instead of a juvenile disposition.100

f Y i in sOMe states, YOuths MaY be DesiGnateD as YOuthful OffenDers

One example of a youthful offender statute is Michigan’s holmes Youthful trainee act. this act, originally adopted in 1967, recognizes that youthful offenders, even if tried as adults, should not necessarily be treated as hardened criminals.101 according to this statute, “youthful trainee status” is available only once to a youth charged with a felony offense (excluding offenses that result in life imprisonment or offenses that consti- tute a major drug offense). Originally, this act applied to youths between 17 and 20 years of age. however, amendments to the original act moved the upper age limit to 21 years and the lower age limit to 16 years, making youthful trainee status available to youths who are transferred to adult court. Upon a guilty plea, the adult criminal court does not enter a conviction, but assigns the youth to youthful trainee status. this status, which is revocable at the court’s discretion, usually involves supervision and probation for up to three years. the focus, even if the juvenile is sent to jail as one of the conditions, is on work and education. If the youth completes the program, the criminal proceedings are dismissed, no criminal conviction is entered, and all of the proceedings are closed to public inspection, in recognition of the stigma that attaches to a person accused of serious crimes, no matter what the eventual legal outcome.

segregated incarceration

Some states, such as Florida and South Carolina, provide separate programs within their adult correctional systems for young adult inmates. In these states, the department of cor- rections operates separate facilities for adolescent adult offenders within a certain age range (18 to 21 years of age or 18 to 25 years of age). When juveniles in these states are convicted and sentenced as adults, they may become eligible for placement in these facilities because of their age.102

Designation of Certain juveniles as Youthful Offenders

Another strategy used in some states is to designate certain juveniles as “youthful offenders” (other terms may also be used). Such a designation often provides special legal protections to a juvenile so designated, such as the sealing of the court record if the juvenile successfully completes his or her sentence. In addition, special programming for these youths may be provided in the juvenile or adult correctional system. Some states that currently have a version of the youthful offender designation are Colorado, Kentucky, New Mexico, and Michigan.103

■ legal issues

From a purely philosophical perspective, it can be asked whether it is proper to transfer juve- niles to the adult criminal justice system. Moreover, a growing body of scientific evidence indicates that juveniles are developmentally different from adults, and thus should be treated differently.104 If a fundamental premise of juvenile justice is that juveniles should be treated differently than adults, why should any exceptions be made and waiver allowed? A counterargu- ment can be made that waivers are necessary because the juvenile justice process has failed to

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do an adequate job of rehabilitating the types of youths that are the subjects of waiver. For those children who are waived at the beginning of their juvenile court history, it can be argued that the system, be it in the form of a child welfare agency or a juvenile court, failed to recognize them as problem children at an early enough age for meaningful intervention to take place.

Is the increasing trend toward legislative, prosecutorial, or presumptive waiver a state- ment by the legislative and executive branches that the judicial branch either is not competent to make these decisions or is consistently making poor decisions? Under either theory, the advent of nonjudicial transfer is a clear attack on the judicial branch. Any time one branch of our tripartite government invades the province of another branch, it should be cause for grave concern. Clearly, many legislators and prosecutors believe, despite the lack of supporting evidence, that the juvenile courts are too easy on serious delinquents.

Despite efforts to “get tough” with juvenile offenders, however, recent rulings by the Supreme Court suggest that some easing of some of the policies of the “get-tough” movement may be under way. As we noted at the beginning of this chapter, on June 25, 2012, the United States Supreme Court decided that the Eighth Amendment forbids sentencing schemes that mandate life in prison without the possibility of parole for juveniles who have been convicted of homicide. In the case of Miller v. Alabama, No. 10-9646, the Supreme Court, in a 5–4 decision, ruled that the imposition of a sentencing authority’s most severe sanction cannot be leveled against juvenile offenders as though they were not children. In reviewing precedent in this area, the Court focused on two broad arguments that converged in the Miller decision. One argument that was articulated earlier in Roper v. Simmons is that children are constitution- ally different from adults for the purpose of criminal sentencing considerations. The Court recognized that juveniles:

1. Lack maturity in judgment; 2. Have an underdeveloped sense of responsibility; 3. Are more vulnerable to negative influences than adults; 4. Can be impulsive, reckless, and prone to risk taking; and 5. Lack the ability to extricate themselves from negative crime-producing situations.

In addition, due to the fact that a “juvenile’s character” is not as “well formed” as that of an adult, the actions of a juvenile are less likely to be definitive proof of depravity or a criminal nature that cannot be changed or rehabilitated.

The general argument considered by the Court requires that the sentencing authority be able to consider “youth” with all of the above considerations, and others that may be relevant, when imposing the most severe penalty. According to the Court, the offender’s age is relevant to Eighth Amendment considerations, and sentencing laws must take youthfulness into account. However, mandatory penalty schemes prevent the sentencing judge from consider- ing the youth of the offender. As a result, the Court indicated that laws that do not do so are flawed and unconstitutional. According to the Supreme Court, judges must be able to consider youthful immaturity as a mitigating factor when imposing sentence.

Moreover, the Miller decision rests not only on these prior precedents, according to the Court, but also on “common sense.” Any parent knows that juveniles do not have the mature judgment, decision-making ability, and interpersonal skills that would help them avoid risky behavior and the negative influence of peers or adults. In addition, the Court cited psycho- logical studies that clearly show “fundamental differences between juvenile and adult brains.”

Having reviewed the holding and rationale behind the Miller decision, the question that needs to be asked and answered is, what does this decision mean for the individual states that have juveniles who are incarcerated for life without parole? Michigan has 358 persons serving mandatory life sentences who were 14–17 years of age at the time of their crimes. Of these inmates, 69% are black, 76 have served 25 years or more, and 31% did not commit a

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homicide but were present and convicted as an aider or abettor. These 358 inmates cost the state of Michigan more than $10 million a year to house them. Michigan has more juvenile lifers than any state other than Pennsylvania.105

Even though youths have to be 18 years old to vote, in Michigan they are considered an adult at the age of 17 for criminal charging and conviction purposes. This has been the law in Michigan since at least 1944 (MCL 712A.2). Because the Miller decision applies to all juveniles under the age of 18, it will likely require the following from the states:

1. Juveniles who were sentenced under mandatory life sentence without parole laws will have to be resentenced;

2. State laws ordering mandatory life sentences for juveniles will have to repealed, and indi- vidual judges will have to be given the sentencing discretion to consider the factors of “youthfulness” as set forth in Miller. In the long run, the Miller decision may actually save states incarceration dollars because

some older prisoners may be released outright upon sentence reviews, and others are likely to have their sentences reduced significantly.

In essence, the Miller decision indicates that if we believe that children and teenagers are different from adults to the extent that they cannot exercise adult privileges such as voting, drinking alcohol, smoking, entering into contracts, and so on, then society should not hold them accountable for their actions in the same way as it does adults. The Miller decision is an important one, and it may have a profound effect on juvenile justice. As always, of course, time will tell!

CrITICal ThInKIng QuesTIon

Based on the information presented in this chapter, what do you believe is the best response to the serious juvenile offender?

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Chapter suMMarY

Prior to the development of a separate court for juveniles at the end of the 1800s, youths accused of illegal behavior were subject to the jurisdiction of adult criminal courts. With the establishment of juvenile courts, however, jurisdiction over the criminal behavior of youths shifted to the newly organized courts, which were intended, in part, to shield youths from the harmful effects of criminal court processing and commitment to adult correctional institu- tions. Although jurisdiction over criminal and status offense behavior shifted to juvenile courts after they were established, state juvenile codes still made it possible to try some juveniles as adults. The transfer of a juvenile to a criminal court, which was typically accomplished by holding a juvenile court hearing, was generally thought to be appropriate if the juvenile had committed a serious offense.

Today, each state and the District of Columbia have a mechanism by which some juveniles can be sent to adult courts for trial (called bindover, waiver, transfer, remand, or certification, depending on the state), and most states have at least two mechanisms for transferring some juvenile cases to criminal courts. In an effort to “get tough” on juvenile crime, a number of states have implemented prosecutorial waiver mechanisms that allow prosecuting attorneys the discretion to waive juveniles who meet certain age and offense criteria. Other states have established legislative waiver mechanisms that automatically transfer some juveniles to adult courts for trial if they meet certain age and offense criteria. In addition, some states have developed presumptive waiver laws, as well as blended and determinate sentencing laws, that make it easier to try certain youths in adult courts, maintain jurisdiction over juveniles for longer periods of time, and sentence them to adult correctional facilities.

The “get-tough” movement in juvenile justice has led to the development of additional transfer mechanisms and has produced a substantial increase in the number of juveniles being tried as adults. Today, many serious juvenile offenders are tried in adult courts. However, a lack of clear criteria to guide prosecutorial decisions about transfer in some jurisdictions has contributed to the transfer of many juveniles who have engaged in nonserious crimes such as property crimes, drug offenses, and public order offenses.

As the number of youths tried in adult courts increases, so will the number of youths placed in adult correctional programs. However, there is clear evidence that juveniles who are placed in adult correctional facilities have higher rates of recidivism than comparable youths adjudicated in juvenile courts. Moreover, there is evidence that youths placed in adult facilities recidivate sooner and commit more serious offenses. Consequently, claims about the importance of transferring youths to adult courts as a way of protecting the community, at least in the long run, do not currently rest on a sound scientific basis.

Although the “get-tough” movement in juvenile justice has encouraged increased use of transfer, there is some evidence that its popularity may be waning. Recent Supreme Court cases such as Roper v. Simmons, Graham v. Florida, and Miller v. Alabama have been based on growing evidence that there are significant cognitive and developmental differences between juveniles and adults and that these differences should be considered in deciding how to treat juveniles within the juvenile and adult justice systems. These cases appear to signal a trend toward more developmentally appropriate responses to youths who commit crimes, including serious offenses. Despite this trend, however, and despite the paucity of supporting evidence, the continued use of waiver will likely be with us for some time.

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Key ConCePTs

blended sentencing: Allows either the juvenile court or the criminal court to impose a disposition that involves placement in a juvenile correctional institution or an adult institu- tion, or to serve periods in both juvenile and adult programs. concurrent jurisdiction: Both the juvenile and adult courts share original jurisdiction. Consequently, in states with concurrent jurisdiction, prosecutors are given discretion to file cases that meet certain age and offense criteria in juvenile or criminal court. designation: An action by a prosecutor or juvenile court that makes available adult court sentencing alternatives even though the juvenile is being tried under the jurisdiction of the juvenile court. direct file: See prosecutorial waiver. double jeopardy: As applicable to transfer cases, a principle that requires the state author- ity to choose at the outset whether a juvenile is to be tried as a juvenile or as an adult. The choice must be made at the preliminary hearing or arraignment stage of the proceedings. graduated incarceration: An incarceration strategy according to which a convicted juve- nile begins his or her sentence in a juvenile facility and then moves to an adult facility upon reaching the appropriate age. judicial waiver: A type of waiver selected by a juvenile court judge at a hearing. It is the traditional type of waiver and is found in most states and the District of Columbia. legislative waiver: A type of waiver that results when certain threshold criteria specified by state laws are met. presumptive waiver laws: Under these laws, transfer to criminal court for certain offenses is determined to be appropriate unless evidence can be presented to the court to rebut the presumption that transfer should occur. prosecutorial waiver (direct file): A type of waiver that is within the power of the local prosecutor or state attorney to choose and implement. segregated incarceration: The practice of providing a separate correctional facility desig- nated for juvenile offenders within the adult justice system. statutory exclusion: See legislative waiver. waiver: The process by which a juvenile is moved from juvenile court jurisdiction to adult criminal court jurisdiction for an offense committed while still a juvenile. Also known as bindover, certification, remand, and transfer. youthful offender: A special legal status existing in some jurisdictions that allows young offenders to receive special consideration as regards sentencing, privacy, and rehabilitation, even as first-time adult offenders.

revIew QuesTIons

1. What is meant by the terms waiver, transfer, certification, remand, and bindover? 2. What is judicial waiver, and how does it compare with legislative waiver and prosecuto-

rial waiver?

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3. What are the advantages and disadvantages of prosecutorial waiver? 4. How has the double jeopardy provision of the U.S. Constitution been applied to juvenile

court transfer proceedings? 5. What are the minimally required due process rights of a juvenile at a judicial waiver

hearing? 6. What is designation, and how does it differ from waiver? 7. What is youthful offender status, and how does it differ from waiver? 8. What are graduated incarceration and segregated incarceration? 9. What evidence exists to indicate that waiver benefits juveniles or the community?

10. What are the thresholds that juveniles must cross in order to be eligible for waiver? 11. What are the “political” issues that influence legislative policies regarding transfer of

juveniles to adult courts? 12. In what ways has the use of transfer changed over time? 13. How does the juvenile justice system benefit from transfer? 14. What does concurrent jurisdiction mean? 15. How will Supreme Court hearings influence how persons under 18 years of age are handled

in the adult criminal justice system?

addITIonal readIngs

Bonnie, R. J., & Grisso, T. (2000). Adjudicative competence and youthful offenders. In T. Grisso & R. G. Schwartz (Eds.), Youth on trial: A developmental perspective on juvenile justice. Chicago: University of Chicago Press.

Mole, D., & White, D. (2005). Transfer and waiver in the juvenile justice system. Washington, DC: Child Welfare League of America.

Redding, R. E. (2010). Juvenile transfer laws: An effective deterrent to delinquency? OJJDP Juvenile Justice Bulletin. Washington, DC: Office of Juvenile Justice and Delinquency Prevention.

Snyder, H. N., & Sickmund, M. (2006). Juvenile offenders and victims: 2006 national report. Washington, DC: Office of Juvenile Justice and Delinquency Prevention.

Wizner, S. (1984). Discretionary waiver of juvenile court jurisdiction: An invitation to procedural arbitrariness. Criminal Justice Ethics, 3, 41–50.

Cases CITed

Breed v. Jones, 421 U.S. 519 (1975).

Dusky v. United States, 362 U.S. 402 (1960).

Graham v. Florida, 130 S. Ct. 2011 (2010).

Miller v. Alabama, No. 10-9646.

Roper v. Simmons, 543 U.S. 551 (2005).

Stanford v. Kentucky, 492 U.S. 361 (1989).

Thompson v. Oklahoma, 487 U.S. 815 (1988).

United States v. Bailey, 444 U.S. 394 (1980). See also 444 U.S. 421–422.

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noTes

1. Forst, M. L. (Ed.). (1995). The new juvenile justice. Chicago: Nelson-Hall. 2. Snyder, H. N., & Sickmund, M. (2006). Juvenile offenders and victims: 2006 national

report. Washington, DC: Office of Juvenile Justice and Delinquency Prevention. 3. Fagan, J., & Deschenes, E. P. (1990). Determinants of juvenile waiver decisions for violent

juvenile offenders. Journal of Criminal Law and Criminology, 81, 314–347; Podkopacz, M. R., & Feld, B. C. (1996). The end of the line: An empirical study of judicial waiver. Journal of Criminal Law and Criminology, 86, 449–492; Poulos, T. M., & Orchowsky, S. (1994). Serious juvenile offenders: Predicting the probability of transfer to criminal court. Crime and Delinquency, 40, 3–17.

4. Bishop, D. M., Frazier, C. E., & Henretta, J. C. (1989). Prosecutorial waiver: Case study of a questionable reform. Crime and Delinquency, 35, 179–201.

5. Friday, P. C., & Ren, X. (Eds.). (2006). Delinquency and juvenile justice systems in the non-Western World. Monsey, NY: Criminal Justice Press; Tonry, M., & Doob, A. N. (Eds.). (2004). Youth crime and youth justice: Comparative and cross-national perspec- tives, Vol. 31. Crime and justice series. Chicago: University of Chicago Press; Winterdyk, J. A. (Ed.). (2002). Juvenile justice systems: International perspectives. Toronto: Canadian Scholars’ Press.

6. Gardner, M. C., Jr. (1973). Due process and waiver of juvenile court jurisdiction. Wash- ington and Lee Law Review, 30, 591–613; Gasper, J., & Katkin, D. (1980). A rationale for the Abolition of the juvenile court’s power to waive jurisdiction. Pepperdine Law Review, 7, 937–951.

7. Chebium, R. (2012). Court: No automatic life without parole for juveniles. USA Today. Retrieved from http://www.usatoday.com/news/washington/judicial/story/2012-06-25 /juvenile-life-sentences/55805214/1.

8. Graham v. Florida, 130 S. Ct. 2011, 2034 (2010); Hechinger, S. (2012). Another bite at the Graham cracker: The Supreme Court’s surprise revisiting of juvenile life without parole in Miller v. Alabama and Jackson v. Hobbs. Georgetown Law Journal. Retrieved from http://georgetownlawjournal.org/ ipsa-loquitur/another-bite-at-the-graham-cracker-the -supreme-court%E2%80%99s-surprise-revisiting-of-juvenile-life-without-parole-in -miller-v-alabama-and-jackson-v-hobbs/.

9. Roper v. Simmons, 543 U.S. 551, 578 (2005); Legal Information Institute. (2005). Roper v. Simmons. In Supreme Court collection. Retrieved March 5, 2005, from http://supct.law .cornell.edu/supct/html/03-633.ZS.html.

10. Hechinger, 2012. 11. Streib, V. L. (2003). The juvenile death penalty today: Death sentences and executions for

juvenile crimes, January 1, 1973–June 30, 2003. Retrieved August 20, 2009, from http://www .internationaljusticeproject.org/pdfs/juvenile.pdf.

12. Hass, K. C. (1998). Too young to die? The U.S. Supreme Court and the juvenile death penalty. In A. R. Roberts (Ed.), Juvenile justice: Policies, programs, and services (2nd ed.). Chicago: Nelson-Hall.

13. Legal Information Institute, 2005; Roper v. Simmons, 2005. 14. Amnesty International. (2008). Iran: Spare four youths from execution, immediately enforce

international prohibition on death penalty for juvenile offenders. Retrieved November 1, 2008, from http://www.amnesty.org/en/for-media/press-releases/iran-spare-four-youths -execution-immediately-enforce-international-prohi.

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http://www.usatoday.com/news/washington/judicial/story/2012-06-25/juvenile-life-sentences/55805214/1

http://georgetownlawjournal.org/ipsa-loquitur/another-bite-at-the-graham-cracker-the-supreme-court%E2%80%99s-surprise-revisiting-of-juvenile-life-without-parole-in-miller-v-alabama-and-jackson-v-hobbs

http://supct.law.cornell.edu/supct/html/03-633.ZS.html

http://www.internationaljusticeproject.org/pdfs/juvenile.pdf

http://www.amnesty.org/en/for-media/press-releases/iran-spare-four-youths-execution-immediately-enforce-international-prohi

15. Amnesty International. (2011). Sharp rise in public executi as Iran executes first juvenile offenders in 2011. Retrieved from http://www.amnesty.org/en/news-and-updates/sharp -rise-public-executions-iran-executes-first-juvenile-offenders-2011-2011-04-27; Amnesty International, 2008.

16. Griffin, P. (2008). Different from adults: An updated analysis of juvenile transfer and blended sentencing laws, with recommendations for reform. Pittsburgh, PA: The National Center for Juvenile Justice.

17. Griffin, 2008. 18. Griffin, 2008. 19. Snyder & Sickmund, 2006. 20. Sickmund, M., Sladky, A., & Kang, W. (2012). Easy access to juvenile court statistics:

1985–2009. Retrieved from http://www.ojjdp.gov/ojstatbb/ezajcs/. 21. Snyder & Sickmund, 2006. 22. Griffin, P. (2010a). Transfer provisions. State Juvenile Justice Profiles. Pittsburgh, PA:

National Center for Juvenile Justice; Snyder & Sickmund, 2006. 23. Snyder, H. N., & Sickmund, M. (1995). Juvenile offenders and victims: A national report.

Washington, DC: Office of Juvenile Justice and Delinquency Prevention. 24. Sickmund, M. (2003). Juveniles in court. Juvenile Offenders and Victims: National Report

Series, Bulletin. Washington, DC: Office of Juvenile Justice and Delinquency Prevention. 25. Griffin, 2008. 26. Griffin, 2010a; Mich. Comp. Laws 712A.2(a)(1). 27. Snyder & Sickmund, 1999. 28. Snyder & Sickmund, 1995. 29. Griffin, 2010a. 30. Griffin, P. (2010b). National Institute of Corrections, Convening, cited in Children’s

Defense Fund. (2011). State of America’s Children 2011. Washington, DC: Author. 31. Coordinating Council on Juvenile Justice and Delinquency Prevention. (2005). Com-

bating violence and delinquency: The National Juvenile Justice Action Plan. Washington, DC: Office of Juvenile Justice and Delinquency Prevention; Krisberg, B. (2005). Juvenile justice: Redeeming our children. Thousand Oaks, CA: Sage.

32. Snyder, H. N., Sickmund, M., & Poe-Yamagata, E. (2000). Juvenile transfers to criminal court in the 1990’s: Lessons learned from four studies. Washington, DC: Office of Juvenile Justice and Delinquency Prevention.

33. Griffin, 2010; Puzzanchera, C. M. (2003). Delinquency cases waived to criminal court, 1990–1999. OJJDP Fact Sheet. Washington, DC: Office of Juvenile Justice and Delin- quency Prevention.

34. Griffin, 2010. 35. Griffin, 2010, p. 4. 36. Griffin, 2010. 37. Griffin, 2010; Krisberg, B., Schwartz, I., Litsky, P., & Austin, J. (1986). The watershed of

juvenile justice reform. Crime and Delinquency, 32, 5–38. 38. Sickmund, Sladky, & Kang, 2012. 39. See Sickmund, Sladky, & Kang, 2012. 40. See Sickmund, Sladky, & Kang, 2012.

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http://www.amnesty.org/en/news-and-updates/sharp-rise-public-executions-iran-executes-first-juvenile-offenders-2011-2011-04-27

41. Juszkiewicz, J. (2000). Youth crime/adult time: Is justice served? Retrieved from http:// www.buildingblocksforyouth.org/ycat/ycat.html.

42. See Sickmund, Sladky, & Kang, 2012. 43. Puzzanchera, C., Sladky, A., & Kang, W. (2011). Easy access to juvenile populations: 1990–2010.

Retrieved from http://www.ojjdp.gov/ojstatbb/ezapop. See Sickmund, Sladky, & Kang, 2012. 44. See Sickmund, Sladky, & Kang, 2012. 45. Amnesty International. (1998). Betraying the young: Human rights violations against

children in the US justice system. New York: Amnesty International; Cohen, S. (2007, December 2). Prosecuting kids as adults: Some states ponder changes. USA Today. Retrieved from http://www.usatoday.com/news/nation/2007-12-01-tryingkids_N.htm.

46. Breed v. Jones, 421 U.S. 519 (1975). 47. Feld, B. C. (1987). The juvenile court meets the principle of the offense: Legislative

changes in juvenile waiver statutes. Journal of Criminal Law and Criminology, 78, 471– 533.

48. Poulos, T. M., & Orchowsky, S. (1994). Serious juvenile offenders: Predicting the prob- ability of transfer to criminal court. Crime and Delinquency, 40, 3–17.

49. Fagan, J., Forst, M., & Vivona, T. S. (1987). Racial determinants of the judicial transfer decision: Prosecuting violent youth in criminal court. Crime and Delinquency, 33, 259–286; Fagan, J., & Deschenes, E. P. (1990). Determinants of judicial waiver decisions for violent juvenile offenders. Journal of Criminal Law and Criminology, 81, 314–347; Nimick, E., Szy- manski, L., & Snyder, H. (1986). Juvenile court waiver: A study of juvenile court cases trans- ferred to criminal court. Pittsburgh, PA: National Center for Juvenile Justice; Podkopacz, M. R., & Feld, B. C. (1996). The end of the line: An empirical study of judicial waiver. Journal of Criminal Law and Criminology, 86, 449–442; Poulos & Orchowsky, 1994.

50. Lee, L. (1994). Factors determining waiver in a juvenile court. Journal of Criminal Justice, 22, 329–339.

51. Bortner, M. A. (1986). Traditional rhetoric, organizational realities: Remand of juveniles to adult court. Crime and Delinquency, 32, No. 1, pp. 53–73. Copyright © 1986 by SAGE Publications. Reprinted by Permission of SAGE Publications.

52. Bishop, Frazier, & Henretta, 1989. 53. Brown, J., & Langan, P. (1998). State court sentencing of convicted felons, 1994. Washington,

DC: Bureau of Justice Statistics; Snyder & Sickmund, 1999. 54. Bishop, Frazier, & Henretta, 1989. 55. Bishop, Frazier, & Henretta, 1989, p. 193. 56. Snyder & Sickmund, 1995. 57. Hamparian, D. L., Estep, L., Muntean, S., Priestino, R., Swisher, R., Wallace, P., et al.

(1982). Youth in adult courts: Between two worlds. Washington, DC: Office of Juvenile Justice and Delinquency Prevention.

58. Bortner, 1986. 59. Rudman, C., Hartstone, E., Fagan, J., & Moore, M. (1986). Violent youth in adult court:

Process and punishment. Crime and Delinquency, 32, 75–96. 60. Fagan, J. (1991). The comparative impacts of juvenile and criminal court sanctions on

adolescent felony offenders. Washington, DC: National Institute of Justice. 61. Brown & Langan, 1998; Snyder & Sickmund, 1999. 62. Kurlychek, M. C., & Johnson, B. D. (2004). The juvenile penalty: A comparison of juve-

nile and young adult sentencing outcomes in criminal court. Criminology, 42, 485–517.

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63. Steiner, B. (2009). The effects of juvenile transfer to criminal court on incarceration decisions. Justice Quarterly, 26, 77–106.

64. Fagan, 1991. 65. Greenwood, P. W., Lipson, A. J., Abrahamse, A., & Zimring, F. (1983). Youth crime and juve-

nile justice in California: A report to the legislature. Santa Monica, CA: RAND Corporation. 66. Dobbs, A. (2004). The use of youth as an aggravating factor in death penalty cases involv-

ing minors. Juvenile Justice Update, 10, 1–2, 13–16. This resource examines the issue; Kurlychek & Johnson, 2004.

67. Rudman, Hartstone, Fagan, & Moore, 1986. 68. Bortner, 1986. 69. Gillespie, L. K., & Norman, M. D. (1984). Does certification mean prison: Some prelimi-

nary findings from Utah. Juvenile and Family Court Journal, 35, 23–35. This resource provides additional information; Redding, R. E. (2010). Juvenile transfer laws: An effec- tive deterrent to delinquency? OJJDP Juvenile Justice Bulletin. Washington, DC: Office of Juvenile Justice and Delinquency Prevention.

70. McGowan et al. (2007). Effects on violence of laws and policies facilitating the transfer of juveniles from the juvenile system to the adult system. American Journal of Preventive Medicine, 32, S7–S28; Redding, 2010.

71. Redding, Richard. Juvenile Transfer Laws: An Effective Deterrent to Delinquency? Office of Juvenile Justice and Deliquency Prevention. June 2010. http://www.ncjrs.gov/pdffiles1/ ojjdp/220595.pdf

72. Bishop, D. M., Frazier, C. E., Lanza-Kaduce, L., & Winner, L. (1996). The transfer of juve- niles to criminal court: Does it make a difference? Crime and Delinquency, 42, 171–191.

73. Griffin, 2008. 74. Griffin, P., Torbet, P., & Szymanski, L. (1998). Trying juveniles as adults in criminal court:

An analysis of state transfer provisions. Washington, DC: Office of Juvenile Justice and Delinquency Prevention.

75. Mole, D., & White, D. (2005). Transfer and waiver in the juvenile justice system. Washington, DC: Child Welfare League of America.

76. Griffin, 2008; Snyder & Sickmund, 2006. 77. Griffin, P. (2003). Trying and sentencing juveniles as adults: An analysis of state transfer

and blended sentencing laws. Technical Assistance to the Juvenile Court: Special Project Bulletin. Pittsburgh, PA: National Center for Juvenile Justice.

78. Podkopacz, M. R., & Feld, B. C. (2001). The back-door to prison: Waiver reform, “blended sentencing,” and the law of unintended consequences. Journal of Criminal Law and Criminology, 91, 997–1071.

79. NCJJ. (2006). State juvenile justice profiles. Retrieved from http://www.ncjj.org/ stateprofiles /profiles/TX06.asp?state=%2Fstateprofiles%2Fprofiles%2FTX06.asp&topic=Profile; Mears, D. P., & Field, S. H. (2000). Theorizing sanctioning in a criminalized juvenile court. Criminology, 38, 983–1019.

80. Griffin, 2008. 81. Bishop, Frazier, & Henretta, 1989. 82. Coordinating Council on Juvenile Justice and Delinquency Prevention, 2005. 83. Bishop, Frazier, & Henretta, 1989; Bortner, 1986; Fagan, Forst, & Vivona, 1987; Lee, 1994;

Nimick, Szymanski, & Snyder 1986; Poulos & Orchowsky, 1994.

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http://www.ncjrs.gov/pdffiles1/ojjdp/220595.pdf

http://www.ncjj.org/stateprofiles/profiles/TX06.asp?state=%2Fstateprofiles%2Fprofiles%2FTX06.asp&topic=Profile

84. Jensen, E. L., & Metsger, L. K. (1994). A test of the deterrent effect of legislative waiver on violent juvenile crime. Crime and Delinquency, 40, 96–104; Redding, 2010; Singer & McDowall, 1988.

85. Torbet, P., Gable, R., Hurst, H., IV, Montgomery, I., Szymanski, L., & Thomas, D. (1996). State responses to serious and violent juvenile crime: Research report. Washington, DC: Office of Juvenile Justice and Delinquency Prevention.

86. Lis, Inc. (1995). Offenders under age 18 in state adult correctional systems: A national picture. Special Issues in Corrections. Longmont, CO: Department of Justice, NIC Infor- mation Center.

87. See Guerino, P., Harrison, P. M., & Sabol, W. J. (2011). Prisoners in 2010. Bulletin. Washingnton, DC: U.S. Department of Justice; Minton, T. D. (2011). Jail inmates at mid-year 2010: Statistical tables. Washington, DC: U.S. Department of Justice.

88. Guerino, Harrison, & Sabol, 2011; Harrison & Beck (2006). Prison and jail inmates at midyear 2005. Bureau of Justice Statistics Bulletin. Washington, DC: U.S. Department of Justice.

89. United States v. Bailey 444 U.S. 394 (1980), p. 444, U.S. 421–422. 90. Mariner, J. (2001). The latest trend in child sexual exploitation: Rape in adult prisons.

Retrieved from http://writ.news.findlaw.com/mariner/20010125.html. 91. Jackson, D. (2001). When children act out in violence, they are still children: An evaluation

and proposed reform of Florida’s “adult crime, adult time” brand of justice. Retrieved from http://www.kentlaw.edu/honorsscholars/2002students/Jackson.html.

92. Jackson, 2001; Redding, R. E. (1997). Juveniles transferred to criminal court: Legal reform proposals based on social science research. Utah Law Review, 709–797.

93. NPREC (2009). National prison rape elimination commission report. Washington, DC: Author.

94. Dusky v. United States, 362 U.S. 402 (1960). 95. Grisso, T. (1997). Juvenile competency to stand trial: Questions in an era of punitive reform.

Retrieved from http://www.abanet.org/crimjust/juvjus/12-3gris.html. 96. Grisso, 1997. 97. Grisso, 1997. 98. Grisso, 1997. 99. Grisso, 1997.

100. Griffin, 2008; Snyder & Sickmund, 2006. 101. Holmes Youthful Trainee Act. Mich. Comp. Laws 762.11 and MSA 28.853(11). 102. Torbet, Gable, Hurst, Montgomery, Szymanski, & Thomas, 1996. 103. Torbet, Gable, Hurst, Montgomery, Szymanski, & Thomas, 1996. 104. Bonnie, R. J., & Grisso, T. (2000). Adjudicative competence and youthful offenders. In

T. Grisso & R. G. Schwartz (Eds.), Youth on trial: A developmental perspective on juvenile justice. Chicago: University of Chicago Press; Scott, E. S., & Grisso, T. (1997). The evolu- tion of adolescence: A developmental perspective on juvenile justice reform. Journal of Criminal Law and Criminology, 88, 137–189; Steinberg, L., & Schwartz, R. G. (2000). Developmental psychology goes to court. In T. Grisso & R. G. Schwartz (Eds.), Youth on trial: A developmental perspective on juvenile justice. Chicago: University of Chicago Press.

105. Barnes, J., & Hall, R., Jr. (2011, November 11). No one gets out alive. Kalamazoo Gazette, pp. A4–A5.

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Chapter ObjeCtives After studying this chapter, you should be able to

• Delineate the ways in which the juvenile court is the center and focus of the juvenile justice process

• Describe how the juvenile court, through its leadership and employees, acts as an advocate for children and families

• Describe the structure of the modern juvenile court and where the key personnel fit in that structure

• Describe the primary functions of key juvenile court personnel

• Describe the purpose and importance of the adjudication and disposition hearings conducted in the contemporary juvenile court

• Describe the due process protections that juveniles currently have when they appear in juvenile court and assess their importance

• explain the role of attorneys in the adjudicative and dispositional hearings

• Describe how the juvenile court’s place in the local court hierarchy can affect the resources made available to the juvenile court

• Describe the roles that legal and extralegal factors play in juvenile court dispositions

Chapter Outline introduction

Case trends and types of Cases processed in juvenile Court

the philosophy behind Case processing in the juvenile Court

the structure of the juvenile Court

juvenile Court personnel: the Key players

the adjudication and Disposition hearings

Chapter summary

Key Concepts

the Contemporary juvenile Court chapter

F O S T E R , C E D R I C 1 6 9 2 T S

■ introduction

The juvenile court is the heart of the juvenile justice process. It is in the juvenile court that previous decisions made by law enforcement agencies, probation officers, child welfare work- ers, school personnel, and prosecuting attorneys are supported or altered. It is there that additional decisions—ones that can have a lasting effect on children, their families, and the community at large—are made. Indeed, the juvenile court is the most powerful institution within juvenile justice, and it plays a central role in determining the quality of justice avail- able to juveniles in the community. Not only does the juvenile court determine the outcomes of individual cases (outcomes that can result in the removal of children from their homes and, in some cases, the termination of parental rights), but also, through its legal author- ity, it can determine how other institutions and agencies respond to children. For example, by interpreting laws, issuing various orders, and developing policies, juvenile courts can determine which categories of youths are subjected to and which are diverted from formal court processing. Moreover, in carrying out its role, the juvenile court sends an important message about its concern for children and its desire to serve the interests of children and the community.

Because of its focus on children, the juvenile court typically plays a central role in the child welfare system. Because the juvenile court is often seen as the institution having the greatest responsibility for responding to youths who violate the law, it often is looked to for leadership in efforts to understand juvenile crime and to develop more effective responses to delinquency. In many instances, the burden of acting as an advocate in the political arena on behalf of families and children falls on the shoulders of the juvenile court. Children have little political power, especially children who are poor, and judges and other court personnel frequently testify in front of legislative committees on issues affecting children and families. Local and state bar organizations often have family law and juvenile law committees made up of judges or referees, who are in positions to influence juvenile law practice. Furthermore, many charitable organizations, such as the United Way, seek input from juvenile court person- nel about children and family concerns.

Many juvenile courts also find themselves in the role of consensus builder, fostering agreement among the various community agencies, such as social service and mental health agencies, that work with children and families. Much of the difficulty in dealing with child and family problems involves the scarcity of funding for meeting the needs of children and families. In some communities, juvenile courts are more consistently and better funded and staffed than local social service agencies. As a result, these agencies regularly look to the courts for assistance in their efforts to serve clients.

Like other social institutions, the juvenile court is made up of many individuals who perform a variety of functions. Ultimately, the individuals who occupy various roles in the juvenile court strive (at least theoretically) to protect public safety, serve the

juvenile court The juvenile court

is responsible for holding hearings

and making decisions regard-

ing the disposition of juveniles who have entered the

juvenile justice process. This court

plays many roles, including children’s advocate, program leader, fund-raiser, consensus builder,

guardian, and protector of youths

and the community.

review Questions

additional readings

notes

246 chapter 10 the contemporary Juvenile court

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best interests of children and their families, and ensure the smooth and efficient operation of the juvenile justice process. Yet, like other institutions, the juvenile court is sometimes unable to meet its goals, and occasionally some of its goals are displaced or overridden by other goals. This chapter examines the structure, organization, and operation of the contemporary juvenile court. It also examines critical decision-making events in the juvenile court, the legal context within which juvenile court decisions are made, and the important players who influence juvenile court practice.

F Y i juvenile COurts perFOrm multiple rOles

today, juvenile courts and their personnel perform multiple advocacy roles for children and families. courts and their personnel act as legal experts, political advocates, community consensus builders, and consultants on children’s issues.

■ Case trends and types of Cases processed in juvenile Court

Most delinquency cases are referred to courts by law enforcement agencies, and these agencies have been sending an increasing number of cases to juvenile courts. For example, in 2009, juvenile courts processed more than 1.5 million delinquency cases. This represented a 30% increase in the number of delinquency cases processed since 1985. Moreover, the number of drug law violation cases increased 116%, public order offense cases increased 108%, and person offense cases increased 98%. The only type of offense showing a decline was property offense cases. They declined by 19% between 1985 and 2009 (see Figure 10-1).1 The increase

best interests of the child A catchphrase that serves as a reminder that the primary focus of a juvenile court should be on the rehabilitation of the children who come before it.

Figure 10-1 Delinquency cases processed in Juvenile courts by tyoe of Offense, 1985–2009 Source: National center for Juvenile Justice. (2012). National Juvenile court Data archive: Juvenile court case records 1985–2009 [machine-readable data files].

pittsburgh, pa: NcJJ

case trends and types of cases processed in Juvenile court 247

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in the number of cases being formally processed by juvenile courts since the mid-1980s is a result of a general trend by the police and other agencies to respond formally to youths’ problem behaviors. However, it is important to note that most of the increase in cases being referred to juvenile courts occurred during the 1990s— a time of heightened concern about juvenile crime and a sharp increase in juvenile arrests for Index violent offenses. Indeed, since that time there has been a consistent reduction in the overall number of cases referred to juvenile courts. Thus, although the number of cases referred to juvenile courts increased substantially from the mid-1980s and into the mid-1990s, and is still above 1980s levels, it has declined since the mid-1990s, as Figure 10-1 indicates. This trend mirrors the trends in juvenile arrests noted previously. Unfortunately, although many juvenile courts are deal- ing with more cases today than in the past, juvenile court budgets and resources have not expanded to meet growing needs.

As the data in Figure 10-1 indicate, there has been a substantial change over time in the types of cases referred to the juvenile courts. For example, in 1985, property offense cases made up a majority (60.6%) of the cases referred to juvenile courts, followed by public order offense cases (16.8%), person offenses (15.9%), and drug offense cases (6.7%). By 2009, however, property offense cases accounted for just over one-third (37.7%) of case referrals. Showing substantial increases over time were person and public order offense cases, followed by drug cases. Indeed, by 2009, public order and person offenses each accounted for slightly more than 22% of case referrals, followed by drug offense cases, which accounted for slightly more than 11% of all case referrals.2

The increase in the number of person, drug offense, and public order cases being handled by juvenile courts is an important trend. Although juvenile courts are, in general, more likely to formally process serious offenses than nonserious offenses, a majority of person, property, drug, and public order offense cases are formally processed by juvenile courts. For example, in 2009, approximately 58% of person offense cases, 51% of property offense cases, 54% of drug offense cases, and 57% of public order offense cases were formally processed by juvenile courts.3 Although juvenile courts formally processed fewer cases in recent years than in the mid- to late 1990s, the long-term trend has been to process cases formally. As can be seen in Figure 10-2, prior to 1989, a majority of the cases referred to juvenile courts were handled informally. However, since that time, there has been an increasing trend toward formal pro- cessing of cases, which has been particularly evident since the mid-1990s. For example, in 1985, approximately 46% of the cases referred to juvenile courts were handled formally, but this percentage had increased to almost 54% by 2009.4

Other facts that are worthy of note is that case referrals to court increase with the age of the juvenile, and referrals are more likely for males and for many minority youths. Moreover, older youths, males, and youths who are members of particular minority groups are more likely to be formally processed by juvenile courts. For example, in 2009, the formal case pro- cessing rate per 1,000 youths for youths 12 years of age (the number of cases formally handled by juvenile courts for every 1,000 12-year-old youths in the population) was 6.7 per 1,000, compared with 40.2 per 1,000 for 17-year-old youths.5

Indeed, the likelihood of formal court processing for 17-year-old youths was much higher than that for 12-year-old youths, even though a number of states do not process youths who are 17 years of age because they are considered adults. Moreover, the formal case processing rate for males was 37.9 per 1,000, compared with 11.8 per 1,000 females. For white youths, the formal case processing rate was 19.5 per 1,000 youths, compared with 57.0 per 1,000 African American youths, 29.5 per 1,000 American Indian youths, and 7.9 for youths categorized as Asian.6

formally process Handle a case in a way that leads

to a formal court hearing.

248 chapter 10 the contemporary Juvenile court

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eibell/iStockphoto

■ the philosophy behind Case processing in the juvenile Court

The early juvenile courts were characterized by informality,7 and they paid little attention to due process protections—protections recognized as the cornerstone of adult criminal court operation because they help prevent governmental abuse of power. In the juvenile courts, however, an emphasis on due process protections was thought to be unnecessary and possibly counterproductive. It was thought to be unnecessary because the juvenile courts had been created to serve the best interests of children. Moreover, it was thought to be potentially counter- productive because it could hinder the efforts of the courts to respond quickly to the needs of children.

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Figure 10-2 Number of cases handled Formally and Informally by Juvenile courts, 1985–2009 Source: National center for Juvenile Justice. (2012). National Juvenile court Data archive: Juvenile court case records 1985–2009 [machine-readable data files].

pittsburgh, pa: NcJJ

F Y i GettinG up-tO-Date inFOrmatiOn On Cases prOCesseD in juvenile COurts is beCOminG mOre DiFFiCult

as this edition is being completed in the fall of 2012, the most recent data available on cases processed by juvenile courts are from 2009.

the philosophy Behind case processing in the Juvenile court 249

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Although contemporary juvenile court operation is still marked by considerable infor- mality in many jurisdictions, U.S. Supreme Court rulings such as Kent v. United States, In re Gault, In re Winship, and Breed v. Jones, as well as state court rulings, have led to more formal procedures in juvenile courts. For example, in many jurisdictions, it is now common practice for juveniles to be represented by counsel in juvenile court hearings, for records to be made of juvenile proceedings, for courts to carefully detail the rights of youths and parents when they appear before the court, and for courts to follow the same procedural rules used in adult criminal courts. Nevertheless, it is also true that the extent to which courts employ more for- malized procedures and protect due process rights varies considerably across jurisdictions. Indeed, in some states many youths still appear before juvenile courts without representation by counsel.8 Furthermore, the quality of representation that many youths receive is inadequate.9

These realities highlight the sharp differences in juvenile court operation found in the United States. These differences include not just variations in the quality of representation, but also differences in the structure of the courts, as explained in the following section.

F Y i attOrneYs DO nOt alwaYs prOviDe aDeQuate representatiOn tO juvenile Clients

Unfortunately, youths and their parents often get what they pay for. Most attorneys who appear in juvenile courts are not retained by the parents of the juvenile to represent their child or themselves. Most are court appointed, and the pay is minimal. New attorneys, recently admitted to the bar, typically try to get on court-appointed lists as a way to get court experience and to earn some income. the lack of experience on the part of some attorneys who practice in juvenile court may be one factor that accounts for the inadequate representation that juveniles sometimes receive in juvenile courts. In addition, several other factors may contribute to inadequate representation of youths. these factors include high caseloads, inadequate training in areas such as child development, learning disabilities, child mental health and juvenile law, and a lack of resources for mounting a strong defense.10 Moreover, attorney perspectives of their role in the juvenile court may influence the type of representation that is provided. attorneys who believe that their role to is act as a surrogate guardian for the child or those who believe that their role is to assist the court in serving the best interests of the child11 may be less inclined to mount vigorous defenses for clients because such tactics may not be seen as serving the best interests of the child.

Of course, effective and competent representation is found in the juvenile courts. Many veteran attorneys practice in juvenile courts as appointed counsel, not so much for the money but because they want to have a positive effect on young lives. Many attorneys take the position that if they can help juvenile offenders straighten out their lives, they may not have to provide legal representation to these same individuals after they become adults.

■ the structure of the juvenile Court

Each state, as well as the District of Columbia, has at least one court with authority over minors who engage in illegal behavior. Generally, courts that handle delinquency cases are either part of the highest court of general trial jurisdiction or part of a lower trial court where less serious

F Y i

the logic used to downplay the importance of due process in juvenile courts was this: Because they were established to serve the best interests of children, children did not need to be protected from these institu- tions. as the history of juvenile justice makes clear, however, juvenile courts and other institutions that make up the juvenile justice process have not always operated in ways that help children or serve their interests. Moreover, this is a problem that continues today

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criminal cases or limited-claim civil matters are heard. In some states, however, delinquency cases are heard in separately organized family courts by judges who specialize in juvenile and domestic relations matters.

Although a court that hears delinquency cases is generally referred to as “the juvenile court,” in most states this term is not used as the official name of the court. In fact, the struc- ture of courts with juvenile jurisdiction varies considerably from state to state, and can even vary within a state. A court with jurisdiction over juveniles may be part of a district, superior, circuit, county, municipal, or family court. It typically has a separate division that handles juvenile cases involving criminal or status offense behaviors, and it may handle abuse and neglect cases as well as adoption, termination of parental rights, and emancipation of minors.12 For example, the juvenile court in North Carolina is part of the district court, a lower general trial court within the state. One or more district court judges, depending on the size of the jurisdiction, volunteer to specialize in juvenile cases, or if there are no volunteers, one or more judges may be appointed by the chief district court judge to hear juvenile cases. In Florida, the juvenile court is part of the circuit court, a court of general jurisdiction where most criminal and civil matters originate. In California and Alaska, the juvenile court is a part of the superior court, which is also a court of general trial jurisdiction, whereas in Rhode Island and South Carolina, the juvenile court is part of a separately organized statewide family court system. In Michigan, the juvenile court was a division of the probate court until 1998, at which time it became part of the family division of circuit court, the general trial court in that state. Colo- rado has a hybrid model: Denver has a separately organized municipal juvenile court, but in the remainder of the state, the juvenile court is part of the district court, which is a court of general trial jurisdiction.

As noted earlier, in some states juvenile courts are part of lower trial courts. National stan- dards recommend that states establish family courts as a division of the general jurisdiction trial court. This would allow these courts to hear a wide range of juvenile and family-related issues and theoretically would allow better coordination of cases when families are involved with multiple courts. However, there has been only limited movement in this direction to date. Some states (e.g., Rhode Island, New York, Delaware, and South Carolina) have placed jurisdic- tion for delinquency matters in a family court.13 One state that has recently taken some steps in this direction is Massachusetts. In Massachusetts, there is a statewide juvenile court under the Administrative Office of the Trial Court that has 11 divisions around the state, has its own chief justice, and holds court in more than 40 locations around the state. The Massachusetts juvenile court has general jurisdiction over delinquency, children in need of services (CHINS), care and protection petitions, adult contributing to the delinquency of a minor cases, adoption, guardianship, termination of parental rights proceedings, and youthful offender cases.14 Also, a number of other states (e.g., Alaska, California, Colorado, Florida, Illinois, and Wisconsin) have moved jurisdiction over delinquency cases to the highest court of general trial jurisdic- tion. Altogether, a variety of juvenile court models exists—indeed, sometimes more than one type of court structure can be found within the same state (e.g., Colorado).

According to H. Ted Rubin, who has studied courts extensively, “The structure of any court is significant because it affects the status of the court, in part the quality of the judges of the court, and frequently the budget and the adequacy of the staff of the court.”15 Within each state, the state supreme court is the court of highest status. At the trial level, however, the court of highest status is the general trial court, whatever it happens to be called (e.g., circuit court, superior court, district court, or court of common pleas). The general trial court hears felony cases and civil claims that have no maximum dollar limit.16

When a juvenile court is part of the general trial court, it occupies a prestigious position in the state court structure. As a result, it is in a better position to attract a larger share of state resources than lower courts, which command less prestige. It also has higher-paid personnel, including judges and others who staff the court; better facilities; and more support services

family court A unified trial court where all cases involving families are heard, including divorce, adoption, custody, guardianship, paternity, neglect and abuse, and in some jurisdic- tions, delinquency cases. Family court advocates claim that when all family matters are handled by one court, there is less chance for overlapping services, redundant reports, and fragmented intervention.

petition A pleading to initiate a matter in juvenile court. A petition sets forth the alleged grounds for the court to take jurisdiction of a case and requests court intervention.

general trial court A court of high status within a state’s legal system that hears felony crimi- nal cases and civil cases with unlimited dollar amounts.

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than it would if it were part of a lower trial court. In some cases, the additional resources allow more effective and efficient court administration.17 Conversely, when a juvenile court is part of a lower trial court of limited jurisdiction, it may have difficulty attracting sufficient resources to support its mission.

C O m pa r at i v e F O C u s

the united states is unusual because it has more than 51 juvenile justice systems

there is not a single national juvenile justice process in the United States. although there are many common- alities in juvenile justice practice across each state, the District of columbia, U.S. territories, and american Indian courts that handle misdemeanor offenses committed by juvenile members of recognized tribes, there are also a number of differences across these jurisdictions. In many countries, juvenile laws are passed at the national level. thus, juvenile justice processes are more uniform across the country. In the United Kingdom, for example, juvenile laws are passed by the National parliament, unlike in the United States, where each state develops its own juvenile laws.18

When the early juvenile codes were initially enacted, few felt there was a need for a full- time court to handle delinquency matters. Consequently, juvenile judges spent only part of their time hearing juvenile cases. These judges were generalist judges who heard all types of legal matters. Indeed, in many instances, judges who had the least seniority or had the lowest status among the sitting judges were assigned to hear juvenile cases, regardless of their level of interest in juvenile law. The chance of a juvenile case being heard by a judge with little interest in juvenile law was especially high in small, one-judge jurisdictions.19

Despite the trend toward placing juvenile courts within more prestigious general trial courts, some juvenile courts are still part of lower trial courts, perhaps because of a belief held by some that lower trial courts may be able to relate more effectively to parents and youths in the community.20 The more likely reason, however, is that state legislatures, as well as the legal profession itself, have traditionally seen juvenile courts as less important than the courts that deal with adult crime. In addition, as mentioned earlier, the juvenile courts’ clients have never been politically powerful, and the courts’ prestige may have suffered as a result. Furthermore, the early juvenile courts were viewed as playing a parental role and had the responsibility not only of dealing with juvenile crime, but also of protecting children. Thus, many attorneys practicing in juvenile courts viewed themselves more as guardians ad litem (persons appointed by courts to represent children and serve their best interests) than as ardent defenders of their clients’ legal rights.

As a result of the Kent and Gault decisions in the 1960s and the introduction of due process into the juvenile courts, attorneys, judges, litigants, and legislators are more likely to view these courts as “real” or “normal.” Even so, more intense scrutiny of the juvenile courts by the U.S. Supreme Court and the public has its drawbacks. For example, since the mid-1970s, many state and federal legislators, persons who work in the field of juvenile and criminal justice, and a number of people who work in the area of juvenile justice and crime policy have questioned the effectiveness of juvenile courts in dealing with serious juvenile offenders. In response, many juvenile courts have attempted to implement a more balanced approach to juvenile justice, one that protects the rights of juveniles and families but lets the courts address the needs of other community groups, such as victims and those who feel that juveniles should be held accountable for their actions. This balance will be discussed later in the section on adjudication hearings.

Regardless of whether a juvenile court is part of an upper or lower trial court, generalist judges can still be found on the bench. This raises the question of whether juvenile matters

guardian ad litem A person, usually

an attorney, who is appointed by the

court to represent the best interests

of a child involved in legal proceed-

ings and with social service agencies.

balanced approach to juvenile justice

The belief that juve- nile justice should

give equal attention to public safety,

offender account- ability, the needs

of victims, and the correction and

treatment of juvenile offenders.

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are being given adequate attention by these judges. Indeed, if a judge is required to hear juvenile matters but is not particularly interested in the types of cases that come before the juvenile court, these cases will likely get less attention than they deserve. Even if a generalist judge has an interest in juvenile matters, he or she may have difficulty developing expertise in juvenile law, not to mention adolescent and family issues, because of the variety of cases the judge must hear.21

Concerned that generalist judges are devoting insufficient attention to juvenile matters, leading juvenile court advocates have called for a separate juvenile or family court with special- ist judges. These advocates maintain that specialization is required if judges are to understand the complex legal, family, and adolescent issues involved in juvenile cases. They also argue that specialist juvenile court or family court judges, unlike generalists, will be able to more effectively oversee juvenile cases that sometimes take considerable time and resources.22

An innovation beginning to receive attention is the idea of “one judge, one family.” The thinking behind this idea is that keeping one judge with a family allows that judge to get to know the entire dynamics of that family and thus to take a “holistic” approach in handling the case. Those who support the “one judge, one family” concept argue that, even though a judge may not be a family court expert, he or she could become an expert on a particular family and its problems. Of course, each judge would be responsible for multiple families, but even then the support staff, referees, and caseworkers would have the ability to know the families individually. Instead of trying cases, judges would preside over families. Although this is an intriguing concept, there are some clear drawbacks. One drawback is the possibility that a judge could lose his or her objectivity and become unable to treat the family fairly. For example, knowledge about a youth’s sibling’s involvement with law enforcement and the court or knowledge about the criminal behavior of a youth’s parents might bias a hearing officer against a youth.

Another trend has been toward the establishment of a unified trial court. In this approach, a single trial court capable of dealing with all matters requiring legal intervention would be established in each community. Within this single trial court would be more specialized courts dealing with family matters, delinquency, traffic, civil litigation, and adult criminal behavior. Advocates of the unified trial court maintain that tying separately organized courts together would make court administration more efficient and effective, would eliminate overlapping jurisdictions, and would allow better utilization of court personnel and other resources.23 Some argue that a unified court encompassing several specialist courts, such as courts devoted to delinquency and family matters, would be better positioned to deal with delinquency cases than a general trial court. Although there is little evidence of a trend toward the development of separately organized juvenile courts, there has been some movement toward more special- ized courts dealing with juvenile and family matters within a unified trial court. Illinois has a unified trial court system consisting of 23 circuits, where the circuit court acts as the court of original jurisdiction for all matters that are properly brought before the court.24 The juvenile court is one division or department of the circuit court. For example, in the Circuit Court of Cook County (Chicago), the Juvenile Justice and Child Protection Department contains the juvenile court, which is headed by a presiding judge.25

Still another type of specialized juvenile court that has been established in some jurisdic- tions is the juvenile drug court. The first juvenile drug court was implemented in 1989 in Miami, Florida. Since that time, juvenile drug courts have been started in a number of states. Drug courts are special courts that handle cases “involving substance-abusing offenders through comprehensive supervision, drug testing, treatment services and immediate sanctions and incentives.”26 What is important to note about drug courts is that not only do they hear cases and deal with legal issues around substance possession and use, but they also play a critical role in the coordination of treatment for youths with substance abuse problems. Indeed, these

unified trial court Comprehensive court encompass- ing several special- ist courts, such as courts devoted to delinquency and family matters, as well as other types of courts. Also see family court.

juvenile drug court Specialized juvenile court that handles cases involving substance-abusing offenders through comprehensive supervision, drug testing, treatment services, and imme- diate sanctions and incentives.

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courts follow the therapeutic jurisprudence model that is designed to (1) provide immediate intervention, (2) use nonadversarial adjudication, (3) employ active judicial intervention, (4) utilize treatment programs, and (5) have clear rules and goals.27 Courts practicing therapeutic jurisprudence are what Judith S. Kaye, chief judge of the State of New York, calls “hands-on courts.” She says, “In these courts judges are active participants in the problem-solving process. . . . What’s so different about this approach? First is the court’s belief that we can and should play a role in trying to solve the problems that are fueling our caseloads. Second is the belief that outcomes—not just process and precedents—matter.”28 Although these courts hold youths accountable for their behaviors, the judge, attorneys, probation staff, and treatment providers also work as a team with the youth and family to encourage behavioral changes.

F Y i nOt all juvenile Cases are hearD bY juvenile COurts

as noted earlier, criminal courts hear cases of juveniles who are transferred to adult courts. also, because there is no separate federal juvenile justice system, juveniles who are arrested by federal law enforcement officials may be handled by U.S. District courts.29 Moreover, various tribal courts handle misdemeanor cases of juvenile members of recognized american Indian tribes, and federal courts have jurisdiction over felony offenses committed by tribal members.30

■ juvenile Court personnel: the Key players

The juvenile court, of course, is more than just a structure. It is made up of a number of indi- viduals who work within the organizational framework of the court. These individuals perform a variety of roles—roles that regularly require them to make important decisions about the lives of youths and families and community safety. Collectively, these roles and the decisions made by the individuals who work in and in concert with the court determine the quality and quantity of justice dispensed by the juvenile court. The following sections describe some of the key decision makers who determine the quality of justice dispensed by the juvenile court.

the juvenile Court judge

The most important decision maker in the juvenile court is the judge. The judge has ultimate responsibility for the operation of the court and for the legal direction the court takes. The judge exerts influence through (1) judicial administration of the court and (2) judicial leadership.

As the ultimate leader of the court organization, the juvenile or family court judge may be responsible for hiring and firing of court personnel, court policies, work rules, and the level

and priority of court staffing. Usually, a court admin- istrator is hired to handle the day-to-day operation of the court, hire and fire staff, oversee the budget, and perform other administrative and policy tasks. In smaller courts that do not have court administrators, many of these tasks may be delegated to a paralegal, administrative assistant, or clerk who assists the judge. The amount of authority delegated to the court admin- istrator and other middle-management personnel in the court, however, often depends on the philosophy of the judge. If the judge takes a “hands-on” approach, he or she will take an active interest in the day-to-day operation of the court. The judge may want to review all personnel, policy, and budget decisions before they

judicial administration

The daily and long- range management

of a court. The judge, as head of the

court, is ultimately responsible for

judicial administra- tion, but can choose to delegate many of

the particular duties to others, such as a

court administra- tor, paralegal, or

administrative aide.

judicial leadership Guidance provided

by a judge in the areas of program-

ming, person- nel, and budget administration.

Also shown in his or her efforts to act as children’s advo-

cate and consensus builder within the

community.

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are implemented. Furthermore, court staffing may well reflect the judge’s view as to what the court’s emphasis should be. For example, if the judge believes strongly in probation and the development and operation of programs for youths, then extra resources might go to hiring probation officers and developing and staffing various treatment programs, assuming that the court budget makes these activities feasible. In another court, the emphasis might be on community protection, and the judge might want money spent on a detention center and out-of-home placements. The main disadvantage of a hands-on approach is that the judge’s involvement in administrative matters takes time away from his or her courtroom duties. It also can lead to frustration on the part of the court administrator and other staff, who may resent a judge’s constant incursions into their professional domains. Of course, in many jurisdictions, judges may have little or no control over probation, detention, and other resources because these are operated by other state agencies, not the court. Thus, the number of individuals who can be directly influenced by the juvenile court judge varies across jurisdictions. Nevertheless, within the court itself, judges are the key decision makers, and as we note below, their influ- ence can be seen well beyond the court itself.

If the judge views his or her role as setting broad administrative guidelines and policies and letting the hired managers run the court, a different atmosphere is present. A hands-off approach allows court managers to do what they do best—run the court. The advantages are obvious. People in the court are able to perform the roles their professional training prepared them for. The disadvantages include the possibility that the judge will become isolated from the daily life of the court and lose touch with the employees. Another concern is that administra- tors, because they are hired and not elected, may not be attuned to community priorities and concerns to the same extent as judges. Thus, the ideal is for the judge to set broad guidelines for the administrator and the other managers, but to continue to actively review the progress and outcomes of court programs.

In the judicial arena, the judge is paramount. He or she is the role model for other court employees, including the quasi-judicial officers such as referees, masters, commissioners, and magistrates employed in the court. The judge decides how the courtroom will be run, what cases have priority, what outcomes are preferred, and the extent to which due process is emphasized for juveniles and families. For example, if the judge decides that status offenders are not going to be dealt with by the court, that decision not only affects the types of cases heard by the court, but also can influence the types of staff the court will need and the types of programs operated by court personnel.

Judicial leadership is not simply relegated to the court, but is found in the community as well. Judicial leadership carries into the community, as judges commonly serve on numerous community boards and committees. How the citizens of the community perceive the judge and react to that perception will have much to do with their support for the court as a whole and for individual court programs. The judge must maintain favorable relations with business and community leaders and elected officials. Many times, the court’s budget is controlled by the county board or council, and how they feel about the judge may be translated into dollars and cents. Importantly, most juvenile court judges are elected officials. Once elected, they are always “running” for reelection when in the public eye, and their ability to deal with the political pressure they experience is crucial to their success and the success of the court. For instance, they may be under considerable public pressure to take a tough stand on juvenile crime, which can sometimes conflict with their desire to help youths.

In large urban counties with several juvenile court judges, the judges typically elect one of their colleagues to be chief judge, usually on the basis of seniority,31 although the chief judge in some jurisdictions is chosen by the state’s highest court. In a statewide juvenile court system like that found in Massachusetts, there is a chief justice who is appointed by the governor and acts as the overall administrator for the juvenile court divisions around the state. Regardless

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b O x 1 0 - 1 IntervIew: the honorable Stephen GorSalItz, ChIef JudGe of the nInth CIrCuIt Court. famIly dIvISIon

Q: how did you come to serve on the family court bench? a: I had been a lawyer in full-time private practice for 25 years doing personal injury litigation primarily. earlier

in my career, for the first 8½ years of my practice, I had done some court-appointed work in the juvenile court, both in delinquency cases representing accused delinquents and in child protective proceedings as attorney for the parents and lawyer guardian ad litem for the children. I found that the work I had done in these juvenile court cases was far more rewarding than my personal injury practice, so when the judge position in the family division opened up, I ran for it and was elected.

Q: What types of cases do you hear or preside over on a regular basis? a: there are quite a varied number and types of legal matters that the family court has jurisdiction over. It has

been and continues to be a challenge to stay current with the changing laws in so many legal areas, but the vast majority of hearings I preside over are delinquency cases, child protective proceedings, divorces, and cases arising from divorces such as child support and visitation matters. I will list for you the various types of cases I preside over: child protective proceedings, delinquency matters, divorce with and without children, custody, paternity and child support, parenting time, adoptions, guardianships, mental com- mitment proceedings, parental waiver cases where the court authorizes minor girls to obtain an abortion without their parents’ permission, personal protective orders, and drug treatment court cases.

Q: how heavy is your weekly work schedule given the many types of matters that you handle? a: typically I spend between 25 and 30 hours per week on the bench presiding over court cases. For each hour

I spend on the bench, I have preparation time of 5 to 10 hours per week, which includes signing orders. as the chief judge, I have administrative duties that typically take from 4 to 6 hours each week. I don’t have a law clerk, so I do my own legal research, which takes approximately 5 hours each week. So you can see that I keep busy as a judge.

Q: how much do you get paid for your work? a: My salary, which is paid by the state of Michigan, is $139,000 per year, and judges have not had a raise

in several years.

Q: What is your education background? a: I graduated from Western Michigan University in 1972 with a BS in psychology and sociology. I was a

scholarship athlete for the Broncos, running track and cross country. I went to law school after graduation, and graduated from cooley Law School in Lansing, Michigan, in 1976.

Q: Do you support the family court concept as the best way to make the system work better for families and children?

a: Yes, very much so. In Michigan, our family court statute talks about “one judge, one family,” and that is the principle that we try to follow. the more informed and knowledgeable I am about a family and their history, the more readily I can get right to the fundamental issues and problems that need to be addressed and corrected. It prevents communication lapses between courts and makes us more efficient. the only downside, however, is that after a long time with a family, it is sometimes hard to be objective about them.

Q: Do you believe that judges need specific expertise in handling delinquency matters and child protective proceedings?

a: Yes, I definitely think so. One needs a background in the behavioral sciences and a fundamental under- standing of how human beings function. the purpose of court jurisdiction is to assist people in changing negative behaviors and helping them to make better decisions. It also helps to have an understanding of how the service provision system works and how services are funded. there are also special areas of the law that judges need to be familiar with, such as the Indian child Welfare act, title 4D and 4e federal laws, which impact the state family court. It goes without saying that, as a judge, I need to know the court rules, statutes, and forms that I use every day, and it does not hurt to understand the legislative process.

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Q: In Michigan, does the family court have the responsibility for the delivery of services and case supervision in child protective proceedings and delinquency cases?

a: the answer is yes in both instances, but in different ways. In child protective proceedings, the court does not provide direct services to families and children but performs the job of “watchkeeper” over the Department of human Services and private agencies that directly deliver the services. It is the court’s job to make sure that the court’s orders are followed and that the needed services are delivered. that may sound like a “no brainer,” but people make the system go, and people make mistakes and misjudgments.

as for delinquency cases, the court is responsible for direct delivery of services and supervision of delinquent juveniles under the court’s authority. the court has an experienced probation department that supervises juveniles allowed to return to the community, a day treatment program that serves juveniles during and after school hours, and a 60-bed juvenile home and treatment center for juveniles who present special challenges to their families and the community.

Q: What are the most important legal or social issues facing your court in 2012 and beyond? a: I can think of four major challenges to the court and community now and into the future. First is access to

justice. Michigan is just one of three states that place the financial burden on local governments to fund court-appointed attorneys for indigent persons. In the family court, all delinquents are presumed indigent, so we have quite a significant financial obligation to provide adequate representation for them. In child protective proceedings, the children are provided with a lawyer-guardian ad litem at no cost to them, and most parents qualify for court-appointed counsel.

Second, it is an ongoing challenge to make sure that services ordered are carried out to reunite families. With the states contracting out services and case supervision to private child-care agencies, having the budgetary money to pay for these private services is a challenge. any extras that are needed in cases have to be funded by grants or foundation money, which is not always available or easy to obtain.

third, there was a lawsuit filed against the DhS (Department of human Services) a few years ago that resulted in a settlement that required the DhS to do certain things differently in their supervision of and provision of services in child protective proceedings. Neither the local courts nor the legislature was party to this lawsuit, nor were they consulted about the consequences of the settlement. as a result, the legislature needs to catch up in implementing legislation to help with the settlement-mandated changes and to provide the necessary additional funding for those changes.

Last, there is a significant problem with the negative stigmatization of juveniles due to convictions that get posted on the Internet. the entire premise of the juvenile court is that children should be able to correct youthful mistakes and not have to live with the consequences for their entire lives. With the advent of the Internet, delinquency convictions that are public knowledge are posted and never go away. the court does not have the ability to expunge the Internet.

Q: If you could change or modify the juvenile justice system, what changes would you make? a: I would require more education in the schools about the consequences of illegal drug use, especially meth.

I would mandate that schools cooperate with even earlier intervention to at-risk families. I would focus more funding on access to justice matters and education. Finally, I would stress that communities are responsible for their children and that more emphasis should be placed on the value of fatherhood and parenthood. too many children are growing up without proper male role models in too many of our communities.

Q: What have been your most rewarding experiences while sitting as a family court judge? a: Seeing families successfully navigate the system and be reunited with their children is a great experience,

knowing that in some way you helped out in the process. It’s great when young people come back to visit and stop in to thank me for holding them accountable, but also for believing in them and helping them to do the right thing and make better decisions for themselves.

Source: Stephen Gorsalitz, September 20, 2012.

b O x 1 0 - 1 (ContInued)

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of how the chief judge is chosen, and the range of his or her administrative authority (e.g., whether it is a county or a statewide system), the chief judge has the ultimate responsibil- ity for court administration and judicial leadership, although daily court operations may be delegated to a court administrator in larger jurisdictions. In large courts, the burden of this responsibility can be extremely taxing, and therefore good administration is even more important in these courts, whether administration is directed by the judge, an administrator, or a judge and administrator team.

Juvenile court judges wield tremendous power over juveniles and families who come before the court, and they exercise wide discretion in how they respond to cases. This is most clearly seen when judges remove children from their homes. Indeed, the ability to take juveniles from their homes and detain them or impose some other out-of-home placement represents a conspicuous example of the power vested in judges. Yet juvenile court judges exercise tremendous power in a variety of ways—they issue orders that require youths to seek treatment, obey their parents, avoid unsavory persons or places, attend school, cooperate with probation officers, adhere to curfews, and engage in other actions that judges feel are appropri- ate. In addition, juvenile court judges may also order parents to engage in (or refrain from) certain actions. For example, a judge may order parents to attend counseling, transport their child to court-ordered counseling, clean their home, ensure that their child attends school, cooperate with probation officers, and pay some or all of the costs of the services provided by the court. Furthermore, a juvenile court judge may hold the parents or guardian of a child in contempt of court and have them jailed for not complying with court orders.

Clearly, juvenile court judges have considerable power. Not surprisingly, some juvenile court judges abuse their power and act like tyrants or dictators when they are on the bench. Many others, however, are dedicated and able jurists. These judges are careful to protect the rights of juveniles and families before the court, and they strive to balance the best interests of children and families against the need to protect public safety.

F Y i mOst juvenile COurt juDGes are eleCteD

Juvenile court judges are selected in a variety of ways. In most states, they are elected in partisan or nonpartisan elections. In other states, they are appointed by the governor from a list of candidates chosen by a screening board. In connecticut, a Judicial Selection commission identifies and recommends qualified candidates to the governor, who must select an individual from the list of candidates. the nominee is then sent to the General assembly’s Judiciary committee, who must confirm the appointment after a public hearing. Finally, both cham- bers of the state legislature must approve the nominee.32 In South carolina, candidates must be screened and found qualified by the Judicial Merit Selection commission. Qualified candidates are then elected by a vote of the legislature.33 also, about a dozen states have adopted the Missouri plan. Under this plan, an elected official, usually the governor, appoints a candidate from a list compiled by a commission. Once appointed to the bench, however, incumbent judges must run on their records in nonpartisan and uncontested elections.34 although there are many dedicated and competent judges who sit on the juvenile court bench, present methods of selecting juvenile court judges do have some drawbacks. Because successful political campaigns require substantial amounts of money, a heavily bankrolled politician can prevail over a more qualified candidate. Moreover, the appointment of candidates to the bench is often a highly political affair, and work for the party in office may be treated as more important than judicial qualifications.35

F Y i juDGes are rewarDeD with substantial salaries

In 2011, the median salary of a judge in a general jurisdiction trial court in the United States was $132,500.36

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juvenile Court referees and Other Quasi-judicial hearing Officers

Among the critical players in many contemporary juvenile courts are individuals appointed by judges as quasi-judicial hearing officers. These individuals, who are usually attorneys, are referred to by such titles as “referee,” “commissioner,” “master,” “administrative law judge,” and “magistrate.” No matter what they are called, their primary role is to hear cases. Indeed, in some jurisdictions, the great majority of cases heard in juvenile courts are presided over by quasi-judicial hearing officers who are not judges.37

Although a variety of factors often enter into the selection of referees and similar quasi- judicial hearing officers, three stand out: (1) knowledge of and expertise in juvenile law, (2) judicial demeanor and interpersonal skills, and (3) ability to assist the court in handling its caseload. As noted earlier, the vast majority of judges are elected. Unfortunately, however, judicial elections are often treated as less important than those for other offices. Furthermore, voters frequently have a hard time distinguishing one candidate from another because ethical considerations prevent judges from campaigning “against” their opponents. As a result, judges are often elected because of name recognition or political connections rather than expertise in the appropriate area of law.

Referees or similar quasi-judicial hearing officers who are appointed by judges, in contrast, are frequently chosen for their expertise. In many instances, they constitute the true repository of knowledge regarding the applicable case and statutory law in the area of juvenile justice, and in some courts, they have far more experience on the juvenile court bench than the sitting judges. In addition to their legal knowledge, their judicial demeanor (i.e., how they conduct themselves on the bench) and their interpersonal skills can be highly valued by juvenile court judges.

It has long been recognized in many states that judges alone cannot handle the large volume of cases that are referred to the juvenile court. There are also a number of minor judicial tasks that, from a practical and an economic point of view, could be better performed by someone other than a judge. Consequently, as the volume of work in juvenile courts has increased, the use of quasi-judicial hearing officers has expanded to keep pace. In many courts, these people preside over most of the same types of hearings as judges, and their recommendations are treated as having the same force and effect as the judges’ orders. Nevertheless, most states place some limits on the authority of referees and other quasi-judicial hearing officers, such as preventing them from conducting waiver hearings or presiding over jury trials where they are available.38

Administratively, referees and other quasi-judicial hearing officers are often looked to as the people to go to for legal advice in the court. Increasingly, they are required to be attorneys, and in many courts, they are more accessible to the line staff than the judges. In some courts, quasi-judicial hearing officers act as legal advisors to the court administrators and thus have a significant influence on court policy. They are also popular in many jurisdictions because they are uniformly less expensive than judges. Their salaries are usually significantly less, and they may require less support staff. For example, a judge may need a personal secretary and a court recorder. In contrast, referees and other quasi-judicial court officers frequently do their own recording and use the court’s clerical pool for processing orders, reports, and other legal documents. As caseloads and docket pressures have increased in many jurisdictions, the creation of quasi-judicial hearing officer positions has become a popular way of dealing with these pressures, and they are seen as economically efficient alternatives to the creation of new judgeships.

The use of referees and other quasi-judicial hearing officers in juvenile courts does have some potential problems. In jurisdictions where quasi-judicial hearing officers hold a major- ity of the hearings, they are arguably “judicial substitutes rather than judicial supplements,”39 despite claims that they are intended to assist judges, not replace them.40 Moreover, heavy

quasi-judicial hearing officer A hearing officer empowered by the court to hear cases. Hearing officers are often attorneys and hear a variety of cases, although state law typically places some limits on their authority.

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reliance on referees may send a message that juvenile court matters are not sufficiently impor- tant to merit more judges, thus diminishing the stature of the juvenile court. Still another problem is that judges, in situations where they are required to review the findings and orders of referees, may do little more than rubber-stamp them. Finally, because referees are hired by judges and serve at their pleasure, a newly hired referee would not have the same degree of power and independence that a judge in a newly created judgeship would have.41

m Y t h v s r e a l i t Y Quasi-juDiCial hearinG OFFiCers OFten have COnsiDerable expertise in juvenile justiCe

Myth—Juvenile court referees (or masters, commissioners, and magistrates, as they are called in some states) lack the expertise of juvenile court judges. reality—Quasi-judicial hearing officers may be hired by a juvenile court judge precisely because of their knowledge of juvenile and family law. In addition, some quasi-judicial hearing officers have far more experi- ence on the juvenile court bench than some juvenile court judges.

F Y i reFerees have substantial authOritY tO aCt On behalF OF juDGes

referees and other quasi-judicial hearing officers are often on call or on weekend duty because of state laws that require a judicial review to be conducted within 24 to 48 hours following the placement of a juvenile in detention. their role as on-call judicial officers gives referees substantial authority to determine which juve- niles should be kept in detention and for what types of offenses. the decision to detain a youth is important because there is evidence that youths who are detained are more likely to receive more severe dispositions at later stages of the juvenile justice process.42 they also conduct preliminary hearings or arraignments, where they make important decisions about bond and the need for further court action. this screening function is crucial for the efficient processing of cases.

on call Available for emer-

gency service. Some jurisdictions require that a judicial officer be available to make emergency decisions

about the place- ment of youths who

are alleged to have violated the law. the juvenile Court administrator

The court administrator is the manager of the court. He or she has primary responsibility for (1) personnel, (2) budget, and (3) programming. The court administrator hires and fires employees, interviews new employees, oversees employee performance evaluations, negotiates with any collective bargaining units, and acts as a liaison with other government agencies on employment-related matters. For example, many juvenile courts are subject to the financial controls of state or local governments (county or city). Usually, these governments have person- nel offices and directors who work with local employees in animal control, police, fire, mental health, and parks and recreation departments. In some jurisdictions, court employees are also local government employees and are subject to the same policies as other such employees. These situations require the court administrator to act as a liaison and coordinator between the court and the local government. If the court is a separate government unit, then the court administrator is primarily responsible for developing and implementing personnel policies, conducting and overseeing employee evaluations, and engaging in other employment-related functions. His or her actions, however, may be subject to the final approval of the judge.

In addition to their employment-related responsibilities, juvenile court admin- istrators also have budget responsibilities. Many juvenile courts have large budgets, and it is the administrator’s job to create a responsible budget and then make sure the court uses its monetary resources wisely. Budgetary items needing consideration may include (1) capital expenses for buildings and grounds, (2) employee salaries and fringe ben- efits, (3) placement costs for out-of-home care, (4) juvenile detention center costs,

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b O x 1 0 - 2 IntervIew: r. SCott ryder, trIbal Court admInIStrator for the nottawaSeppI huron band of potawatomI IndIanS and prIvate praCtICe attorney

Mr. ryder is former Juvenile Division Director/referee, 45th circuit court, Family Division, St. Joseph county, Michigan, and chief referee for the Family Division, Ninth Judicial circuit court, Kalamazoo, Michigan

Q: What were your responsibilities as an administrator, and how did you like them? a: as a court administrator, I conducted hearings from time to time—I have presided over more than 20,000

hearings in my career. primarily, I worked on financial issues, including preparing and overseeing the budget; personnel issues, hiring, firing, and contract negotiating; court scheduling and docket control; legal research and policy preparation; acting as a liaison between the court and other public and private agencies dealing with juveniles; and finally just managing the day-to-day activities of the court. I enjoyed the challenge and the opportunity to be involved in all facets of the court’s operations.

Q: You worked for more than 25 years as chief referee in a juvenile court and you still heard cases. What did you like about the referee position?

a: I liked the challenge of making decisions that can have a positive impact on children and families. I also liked the challenge of articulating community standards and the challenges that arise in the course of hearings, and I enjoyed very much the people I worked with.

Q: What were the most difficult challenges you faced as chief referee? a: Being in a supervisory position is always a challenge, especially when you are responsible for supervising

independent judicial officers, because there is not always a simple “right” decision. My approach has always been to ensure that the right procedures and policies are followed. Of course, anytime one works in government, there are a variety of political issues you must face. Unfortunately, political decisions that influence juvenile justice are often made without input from people who work in the field. another challenge was working with families. there is a lot of poor parenting, and it can be difficult trying to get parents to be more responsible and positively involved in their children’s lives.

(5) court-appointed attorney fees, (6) witness fees, (7) security costs, (8) equipment costs and amortization, (9) training costs, and (10) mileage and travel costs. It is evident from this list that a great deal of economic tradeoff and balancing must be done to meet the needs of children, families, and the community without forgetting the employees of the court who provide services to the court’s clientele.

Finally, the court administrator must exercise leadership in developing and imple- menting programs to serve children and families and to accomplish the mission of the court. To do this effectively, the administrator must be familiar with the needs and resources of the community, the preferences of the judges, and the economic constraints of the court budget. Ideally, the court administrator should be knowledge- able in a variety of areas, including (1) community corrections, (2) diversion alternatives, (3) detention resources and secure placement options, (4) group and foster care programs, (5) substance abuse treatment, (6) mental health options, (7) domestic violence programs and shelters, and (8) institutional placement options. In many jurisdictions, the court actually operates some of these programs and must fit them with other programs to provide a continuum of care for children. The creation of a continuum of care requires not only staff- ing and managing court-operated programs, but also connecting with other state and local resources and agencies that operate programs for children and families. The administrator must be able to develop needed programs, see that they are properly staffed and managed, evaluate their effectiveness, and know when resources outside the court must be used to aid in the treatment of juveniles and to protect the community.

continuum of care A range of com- prehensive and connected services for families and children.

(continues)

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F Y i COurt aDministratOrs are sOme OF the hiGhest paiD prOFessiOnals in juvenile justiCe

the median salary for a state court administrator in 2011 was $130,410.43

the prosecuting attorney

The prosecuting, district, state, or commonwealth attorney is the chief law enforcement officer of the county, district, or local government. All police work goes to the prosecutor for review, and in most cases, only the prosecutor can issue charges of delinquency against juveniles (see Figure 10-3). Indeed, the prosecutor plays a key role in determining which cases will go to court, what the specific charges will be, which cases will be considered for waiver to adult courts, and what the disposition of each case will be.44

Q: What was a typical presenting problem in the cases you heard in court? a: an absence of responsible parenting. Many of the parents didn’t properly supervise their children, impart

appropriate values to them, or support their children in positive activities. too many parents were so caught up in their own lives that they failed to play a positive role in the lives of their children.

Q: What qualities does it take to be a successful hearing officer? a: You have to know family and child law, how the court works (what it can and cannot do), and how it fits

into a continuum of services for youths and families. You have to know the fundamentals of appropriate parenting. You must be able to be confrontational when necessary, but you also need to be patient and understanding. I also think it is important to have a deep compassion for those involved in the court and a genuine desire to help them make their situations better.

Q: What do you feel is unique to the referee position in the court? a: referees can bring some unique qualities to the court that, unfortunately, are not always recognized. Because

referees are not elected, they can be more independent. also, referees can bring tremendous experience to the court that can take judges years to develop.

Q: What are the challenges that you faced as a court administrator? a: I worked in a small rural county in southwestern Michigan. the entire court budget was slightly under

$1 million, including employees’ salaries and fringe benefits. the court always had to be diligent in overseeing how the money was spent because economic resources influenced our ability to help children and families. consequently, the court had to be creative in utilizing community resources and do a “better than good” job at determining which youths threaten community safety and should be removed from the community. It also meant the court had to be very proactive, not only in developing local programs, but also in networking with local public and private agencies to coordinate services for youths.

Q: What qualities does it take to be successful as a court administrator? a: You have to know family and child law, how the court works, legally what it can and cannot do. You must

understand the local services culture, which agency does what, who you need to contact so that resources can be directed to those who need them most. Most of all, you must understand how to manage, motivate, and lead people. You must understand the strengths and weaknesses of your employees, how to best moti- vate them, and what incentives or discipline works with each. You must be a good listener, open always to both sides of the story, and, finally, you must be decisive. Nothing paralyzes an organization more than leaders who do not lead. I was a “middle” manager, so I had to know my position in the county hierarchy and understand that my real bosses were the citizens and taxpayers of the county. political understanding, “moxie,” can never be overlooked in importance. Finally, you have to understand the judge you work for, how he or she works, his or her philosophy, and how he or she intends to implement it.

b O x 1 0 - 2 (ContInued)

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Prosecutor Police Investigations Delinquency

Charges

No Charge Dumpster

Figure 10-3 the role of the prosecuting attorney

F Y i prOseCutOrs shOulD balanCe juveniles’ interests with thOse OF the COmmunitY

although the prosecutor has an important obligation to protect community safety, the prosecutor should take a balanced approach to juvenile cases, according to the National District attorney’s association (NDaa). accord- ing to NDaa, “the primary duty of the prosecutor is to seek justice while fully and faithfully representing the interests of the state. While the safety and the welfare of the community, including the victim, is their primary concern, prosecutors should consider the special interests and needs of the juvenile to the extent they can do so without compromising that concern.”45

Like other juvenile justice decision makers, the prosecutor has considerable discretion. Given the discretion vested in the office of the prosecutor, the prosecutor can virtually con- trol the juvenile court’s delinquency docket by deciding which cases to formally charge and prosecute. In addition, by deciding what kinds of cases are to be charged, the prosecutor helps determine community standards of acceptable conduct. The decision, for example, to enforce a community curfew makes a statement to youths and their parents about when minors should be at home in the evening. By enforcing a standard for behavior, the prosecutor articulates the community standard, sets forth consequences for violation of that standard, and influences the behavior of some youths and their parents.

Prosecutors, in many states, also have legislatively mandated obligations to victims. In a very real sense, when prosecuting a crime, a prosecutor becomes the victim’s attorney. Only recently have victims been recognized as more than just necessary witnesses. As a result, the prosecutor may have an obligation to seek restitution on behalf of a victim or the victim’s estate and to take special measures to protect the victim both in the court proceedings and out of court.

Prosecutors also play a crucial role in ensuring that the court operates as efficiently as pos- sible. Any court has a finite amount of courtroom time available. An attempt by a prosecutor to charge each juvenile and adjudicate each case would more than use up available courtroom time and would completely exhaust judges, referees, and other court personnel. By careful use of plea negotiating, the prosecutor can save the state’s resources for the most important cases and keep the juvenile court docket from getting clogged up.

the Defense attorney

It is the defense attorney’s job to represent the wishes of his or her client (e.g., an accused juve- nile), ensure that the client’s rights are not violated, and present the client’s case in the most

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favorable light, regardless of the client’s involvement in illegal activity.46 In order to provide effec- tive legal representation, the juvenile defense attorney must establish a good relationship with the client and strive to understand the client’s needs and wishes.47 Theoretically, the attorney must follow the wishes of the client and vigorously defend the client’s interests,48 but many attorneys believe they also should act as an advisor. As mentioned earlier, a defense attorney typically wants to ensure that his or her client receives any help and assistance needed, but the attorney must also ensure that the court has legal grounds for exercising authority over the youth.49

What usually happens is that the defense attorney insists on the juvenile’s due process rights at the initial detention hearing and continues to insist on them through the adjudica- tive or trial stage. After a conviction by trial or plea has been obtained, however, the defense attorney may become more of a guardian ad litem, focusing on the juvenile’s best interests. A guardian ad litem is a person appointed by the court to represent the best interests of a child involved in legal proceedings and with social service agencies. When the attorney assumes this role, then he or she gives more consideration to the needs of the client as a child than to the expressed wishes of the client as a legal defendant.

Defense attorneys also can influence the court’s docket by deciding when they will take a case to trial and when they will attempt to negotiate a plea. For example, in 1997, Michigan enacted a sexual offender registration act that requires all people who are convicted of a sexual offense to be placed on a list available to local law enforcement agencies. Before the registra- tion law, many attorneys would engage in plea bargains in sexual offense cases out of concern for their clients’ future and possible need for treatment. Now most of these cases are going to trial because of attorneys’ desires to keep their clients from suffering the stigmatization that goes with appearing on the sexual offender list. This is a good example of the unintended consequences associated with new legislation. The legislature wanted communities to know who convicted sexual offenders were, for obvious public safety reasons, but the unintended results of the law appear to include an increase in sexual offense trials and a corresponding increase in court expenses.

To understand the role of defense attorneys in juvenile court, it is necessary to distinguish the ways attorneys become involved in the court. Usually, attorneys who appear in delinquency cases are (1) client retained, (2) court appointed, (3) legal aid or public defender attorneys, or (4) members of a consortium of attorneys.

Client-Retained Attorneys These attorneys typically represent clients in criminal proceedings and are hired by the youth’s parents to represent the youth in court. In many instances, however, privately retained attor- neys know little about how the juvenile court operates. In fact, it may be to a client’s advantage to have a court-appointed attorney, because an attorney who practices regularly in juvenile court knows the court process and personnel. However, court-appointed attorneys may have relationships with the court or prosecution that prevent them from acting as zealous advocates for their clients.50

Court-Appointed Attorneys Court-appointed attorneys usually must apply to the chief judge or court administrator to be placed on a list of attorneys available for representing clients in the juvenile court. Minimum levels of training and expertise are often required for qualification, and continuing education is frequently mandated. Court-appointed attorneys are usually called by the court on a rotating basis, and parents of children represented are often required to meet with the court’s finance officer to determine the family’s ability to reimburse the court for attorney fees.

Legal Aid or Public Defender Attorneys These attorneys often appear in juvenile courts because of a contract between the court and their agency to provide legal services. The extent of the services provided is determined by the contract.

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Attorney Consortia These attorneys belong to a group of attorneys who have joined together in order to offer their services to the court for a set amount of money. Although a contract between the court and the consortium dictates the terms of the representation, these private attorneys have a specific interest in juvenile court practice.

In assessing juvenile defense practice in the United States, H. Ted Rubin, a former judge of the Denver Juvenile Court and evaluator of juvenile courts across the country, noted the following about the need for forceful defense of juveniles:

I sense that quite a few juvenile justice professionals, including judges, presume juveniles to be guilty, rather than innocent, and are bothered when defense lawyers vigorously challenge legal procedures and the apparent good intentions of law enforcement, probation, and community corrections officials. However, juveniles must have independent counsel whose primary goal is ensuring that the law and the Constitution are fully adhered to. The courts must require such advocacy, and attorneys should zealously apply these standards. I also see a preference among court and state agency professionals to use intervention and control methods without legal checks. In the belief that they know what is best, they often move youths back and forth between secure and non-secure resources without legal review. Similar practices are what brought us the Gault decision. . . . The best check on uncertain intervention and legal accomplishments is judicial oversight and the forceful legal defense for juveniles. This is in every- one’s best interest.51

probation and Other Casework staff

In addition to hearing officers and attorneys, a variety of caseworkers play important roles in the juvenile court process, including court hearings. One of the most impor- tant is the probation officer. Probation officers perform six basic roles in juvenile courts: (1) screening cases in intake, (2) conducting presentence investigations, (3) supervising and monitoring youths’ adherence to their rules of probation, (4) providing assistance to youths placed on probation, (5) providing ongoing assessments of clients’ needs, and (6) completing a variety of job-related administrative tasks. In other words, probation officers are the people who may visit youths’ homes, locate youths who are not where they are supposed to be, confront parents when they fail to assist their children, check with school and other agency personnel to monitor youths’ behavior and progress, and, when necessary, request that a youth’s probation be revoked. They may also make decisions about how new cases should be processed, conduct investigations, provide testimony and reports for court hearings, work with attorneys in developing dispositional plans, serve summons, and make arrests.

Probation officers or other caseworkers may be employed in specialized programs oper- ated by or on behalf of courts. For example, juvenile courts or other government agencies may operate a variety of programs, such as diversion programs and foster care. Furthermore, they may also operate their own shelter care units, group homes, and detention centers. Probation officers or other caseworkers may be used to staff these programs or be given responsibility for providing casework services to youths in these programs.

Probation and other caseworkers who work for or with juvenile courts clearly perform a number of vital tasks. Indeed, those who occupy these positions can influence which youths penetrate farther into the juvenile justice process. They can influence youths’ involvement in a variety of juvenile justice programs, from diversion to probation to institutional placement. They can also influence how long youths are involved with the juvenile court. In short, pro- bation officers and other caseworkers act as the eyes and ears of the court. These individuals gather and analyze different types of information and make important recommendations to the court that almost always carry weight with judges and other juvenile justice decision makers.

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■ the adjudication and Disposition hearings

All of the key players in the juvenile court—judges and other quasi-judicial hearing officers, prosecuting and defense attorneys, probation officers, and other caseworkers—make decisions that can have a profound effect on youths and families. Although decisions about youths and families are made at many points in the juvenile justice process, they typically are made either in preparation for critical events or during critical events. Critical events that occur prior to the adjudication include the arrest, the juvenile court intake process, the decision to try a juvenile as an adult, and the detention hearing. This section examines two more critical events in juvenile justice: the adjudication hearing and the disposition hearing. These hearings are significant decision-making points in the juvenile justice process because they determine which youths will fall under the formal jurisdiction of the court and how the court will handle those youths.

the adjudication hearing

The adjudication hearing is a critical event in the juvenile justice process that serves as the juvenile court equivalent to a criminal trial.52 It is the adjudication hearing that determines whether the juvenile comes within the jurisdiction and under the formal authority of the court. If the juvenile is adjudicated (if it is found that the allegations are true), the court has the power to issue orders affecting the juvenile and his or her parents (or custodian or guard- ian). Without an adjudication, the court has no legal authority to intervene in the life of the juvenile and his or her family.

The adjudication hearing can take one of two forms. It can be a plea-taking hearing, in which the juvenile admits to a delinquency offense, or it can be a trial. A plea-taking hearing is by far the most common type of adjudication hearing.53 Ideally, at a plea-taking hearing, the purpose and potential outcomes of the plea and the rights that the juvenile and parents have are clearly explained to them. If the plea is the result of plea bargaining between the prosecut- ing and defense attorneys and the juvenile, which is common in juvenile justice, the terms of the negotiation must be placed on the court record, including what the juvenile gets from the plea and what he or she gives up.54 Usually, the juvenile admits to a less serious delinquency charge or fewer charges, the tradeoff being that the juvenile avoids the chance of a more severe sentence and the prosecuting attorney is assured of a conviction.

In theory, the juvenile’s due process rights at the adjudicative phase are virtually identical to those of adults at trial. Consequently, in order to take a valid plea, a complete advice of rights should be given and an understanding waiver or “giving up” of those rights should be placed on the record. Unlike an adult proceeding, however, the juvenile’s parents should also be consulted about whether they agree with the waiver of rights. By accepting a plea at the adjudication, the court not only acquires formal jurisdiction over the child, but it will likely exercise authority over the parents as well.

F Y i plea barGains are COmmOn events in juvenile justiCe

a plea bargain is a deal between the defense attorney (who represents the defendant) and the prosecuting attorney (who represents the state), according to which the defendant agrees to plead guilty to a lesser charge or to fewer charges than originally at issue. Like other deals, both sides get something and give up something. What the prosecutor gets is a conviction and the court’s jurisdiction and power over the juvenile. What the prosecutor gives up is the opportunity at a trial to convict the juvenile of all the charges or the more serious charge. What the juvenile gets is an adjudication on a less serious charge or fewer charges. What the juvenile gives up is the opportunity to have his or her day in court and be found not guilty.

plea bargaining Negotiation of an

agreement between the prosecuting and

defending attor- neys, often with the

consent of the court, to have the accused

plead guilty to a reduced charge or to

fewer charges than originally brought.

The prosecutor benefits by gaining

a certain conviction, and the defendant benefits by avoid- ing the possibility

of a more severe sentence.

If the juvenile chooses to contest the delinquency charges, the only resolution of the matter is to have a contested adjudication hearing or trial. In many jurisdictions, contested

adjudication hearing

The juvenile court equivalent of an

adult court trial. It is at the adjudica-

tion that the juvenile court attempts to

ensure due pro- cess, find the facts,

uphold the law, and make decisions con- cerning jurisdiction

over the juvenile.

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adjudications proceed much like trials in criminal courts, although there can be considerable variation in the court rules and procedures that govern juvenile court adjudications. More- over, there can be important differences between juvenile and criminal court processes. For example, the rules of evidence may not be the same in juvenile court as in adult court, require- ments for proving a crime may be less rigorous in juvenile court, the rules of procedure used in juvenile court may not be completely the same in juvenile court as in adult court, and all of the defenses available to adults may not be available to youths in juvenile court.55 In other states, there are no clear statutory requirements regarding rules of evidence in the areas of “opinion testimony, hearsay evidence, rules of impeachment, and so forth.”56 As a result, hearsay evidence from social investigations is sometimes used in juvenile court adjudications. This practice would not be acceptable in criminal courts because information about how children are doing in school, their peer associations, and their family circumstances are not relevant to their guilt or innocence.57 Moreover, the informality of the juvenile court often provides parents an opportunity to convict their children by criticizing them during the adjudication process.58 In still other states, civil law rules of evidence are used in delinquency matters.59 There are also differences between jurisdictions in the extent to which adult process such as pretrial discovery is afforded to juveniles. In Michigan, for example, juveniles are entitled to limited pretrial discovery,60 and motion practice is governed by virtually the same rules as in adult criminal proceedings.61

In regard to due process protections, there also can be differences between juvenile adju- dications and criminal trials. For example, in many states, juveniles have most, but not all, of the due process protections available to adults, such as the right to be proven guilty “beyond a reasonable doubt,”62 to have the assistance of counsel, to receive written and timely notice, to cross-examine witnesses, and to remain silent.63 However, in an important U.S. Supreme Court case, McKeiver v. Pennsylvania, the Court refused to guarantee a jury trial to juveniles,64 although a number of states have granted juveniles this right. Even in these states, jury trials rarely occur, however, and they typically result in the same outcomes as uncontested cases.65 Thus juveniles are often denied the same quality of legal protections that are afforded adults in criminal trials.

Given the “get-tough” approach toward many juvenile offenders and the increasingly harsh punishment alternatives available to juvenile courts, it is important that juvenile defendants be afforded meaningful due process protections at the adjudication. (A complete list of the due process rights afforded juveniles in one Michigan court is displayed in Exhibit 10-1.) Undoubtedly, the most important of the protections available to juveniles at the adjudication is the right to be represented by counsel. Representation by counsel is critical because attorneys are trained in the law and have an obligation to ensure that the rights of their clients are protected. Despite the obvious importance of this due process right, many juveniles appear in juvenile court without attorney representation. For example, in a study based on juvenile court data in six states, Barry Feld found that, in cases where a petition had already been filed, only about half of the juveniles were represented by counsel.66 Similar findings have been presented in other studies of attorney representation in juvenile courts.67 These findings raise questions about the extent to which due process protections are in fact a reality in many juvenile courts, despite U.S. Supreme Court rulings mandating these protections.

Hearing officers in juvenile courts must be sufficiently cognizant and protective of the due process rights of the juvenile if the court is to have credibility with those it is intended to serve. If, after a conviction at trial, the juvenile or his or her family believes that the trial was unfair or that their rights were slighted by the court, cooperation at the disposition will be affected. Even though many juveniles will continue to proclaim their innocence after trial, it is crucial that the adjudication be conducted in a clear and fair manner in order to facilitate subsequent court decisions made at the disposition hearing.

opinion testimony Testimony based on one’s opinions as opposed to objective facts.

hearsay evidence Secondhand evi- dence, such as a witness’s testimony that he or she heard someone say some- thing.

rules of impeachment Process of dem- onstrating that a witness is not telling the truth or does not have the knowledge to provide specific testimony.

pretrial discovery Part of the pretrial process in which the defense and the prosecution request information from the other side in an effort to discover pertinent facts regarding a case.

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Judge/Referee

Minor waives attorney

Minor’s attorney

Proceedings on the record:

Plea of Guilty Nolo contendere

1. Court has stated why plea is appropriate. Evidence presented to support finding of guilt.

ALL PLEAS —MINOR PERSONALLY ADVISED

DISPOSITION AGREEMENT

MINOR ASKED

COURT SATISFIED

Nature of charge Disposition court could impose

Jury trial Trial by just judge without jury Presumption of innocence Proof beyond reasonable doubt Compulsory process Confront witness Remain silent No adverse inferences from silence Right to testify

Minor on probation Plea admits violation of probation

Terms on record Minor agrees Minor’s parents/guardian agree

Court states if prior agreement in plea or disposition

Minor’s attorney agreesPetitioner agrees

Promised anything beyond stated disposition Threatened His choice to plead

Plea freely, voluntarily made Crime committed (Question minor for elements) Minor involved or took part in

Disposition Date

Plea accepted

Parents agree

Parents/guardian contest verbally to minor waiving these rights. (Be sure both parents state so on record.)

MINOR ADVISED THAT BY PLEA HE GIVES UP

Original charge Lesser

Parents/guardian agree with attorney waiver

Parents/guardian present

APA Date

Sample Guilty Plea Checklist

exhibit 10-1 probate court for the county of Kalamazoo, Michigan, Juvenile Division: Delinquency Guilty plea checklist Source: courtesy of r. Scott ryder.

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F Y i havinG a reCOrD OF juvenile COurt prOCeeDinGs is an impOrtant Due prOCess saFeGuarD

the term on the record, when used to describe hearing procedures, means that an audio or audiovisual record- ing was made of the hearing. this record of the proceedings is a fundamental due process safeguard for the juvenile, because any appeal of the adjudication or disposition is based on this record. having such a record helps prevent judges and quasi-judicial hearing officers from acting capriciously or inappropriately.

the Disposition hearing

The disposition hearing is “the primary feature that distinguishes the juvenile system from the adult criminal court.”68 Unlike the sentencing in criminal court, where a sanction is applied to the offender, the juvenile court disposition is intended to assist the youth and protect the community. It is at the disposition hearing that formal plans designed to meet the needs of the youth, the family, and the community are initiated. It is also at this hearing that the judge or other hearing officer attempts to balance the “best interests” of the youth and the need for community safety. Judges and other quasi-judicial hearing officers often have great latitude and discretion in making dispositional decisions.

In formulating a disposition, the court usually seeks a great deal of input and information, which is gathered and interpreted for the hearing officer by a caseworker (e.g., a probation officer) in the form of a predisposition report or social history. In preparing the predisposition report, the caseworker collects information from various sources in order to present a detailed social history of the youth and the family. The sources may include (1) school reports, (2) victim impact reports and restitution reports, (3) psychological evaluations, (4) substance abuse assess- ments, (5) financial statements and tax returns, (6) letters from the friends and family of the juvenile, (7) criminal histories of the juvenile and other family members, (8) child abuse and neglect history, and (9) the caseworker’s own observations and conclusions. The purpose of this report, which basically outlines “problems” perceived by the caseworker and recommended responses to those problems, is to ensure that the juvenile receives “individualized” justice.69

Juvenile court hearing officers often rely heavily on the predisposition reports prepared by caseworkers and on recommendations in these reports in determining how best to respond to adjudicated youths. The amount and type of information contained in these reports is determined by state laws, court procedures,70 and local custom. In some jurisdictions, pre- disposition reports are very lengthy and reflect a detailed investigation into the background and present circumstances of the juvenile and the family. In other jurisdictions, only limited information about the juvenile’s background is included.71

In most instances, hearing officers follow the recommendations contained in the predispo- sition report.72 However, this may be because probation officers are sensitive to hearing officers’ beliefs about what is appropriate in particular types of cases and tailor their recommenda- tions accordingly. Indeed, as discussed in the next section, there is considerable evidence that both legal factors (such as the seriousness of the offense, the youth’s prior record, and earlier decisions to detain a youth) and nonlegal factors (such as race, ethnicity, and gender) play a significant role in court dispositions.

m Y t h v s r e a l i t Y juveniles have sOme, but nOt all, OF the same riGhts as aDults

Myth—Juveniles have the same due process protections at trial as adults. reality—Juveniles do not have a right to a jury trial in all states, and even in states where this right is avail- able, it is rarely exercised. Moreover, juvenile hearings are often characterized by practices that would not be acceptable in criminal court proceedings.

disposition hearing The sentencing phase of the juve- nile court process. During this phase, the court tries to establish individual- ized plans for juve- niles that balance rehabilitation and community safety.

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F Y i eFFOrts tO prOviDe juveniles with QualitY leGal representatiOn earlY in the juvenile justiCe prOCess are maDe in sOme COmmunities

One example is the Youth advocacy Division (YaD), which provides legal representation to youths in Massachu- setts juvenile courts and has offices in Boston, Fall river, hyannis, Lowell, Quincy, roxbury, Salem, Somerville, Springfield, and Worcester. YaD takes a holistic approach to working with clients by examining problems that led to the youths’ involvement in the juvenile justice process and by coordinating services with community agencies in order to meet youths’ needs during and after court involvement. In addition, it offers consultation to individuals and community groups interested in delinquency, and it provides training to attorneys, parents, youths, and other groups interested in child advocacy.73

F Y i the preDispOsitiOn repOrt is an impOrtant DOCument in the juvenile COurt

although predisposition reports aid judges and quasi-judicial hearing officers in deciding on appropriate dispo- sitions, they contain a considerable amount of opinion and hearsay evidence. Indeed, much of the information contained in a typical predisposition report would not be legally admissible during the adjudicatory hearing. consequently, the hearing officer must not see any of this information prior to the trial or plea. Furthermore, the caseworker should not begin his or her investigation and preparation of the report until after jurisdiction is obtained at the adjudication. Initiating a sentencing investigation, which clearly implies a presumption of guilt before any guilt has been formally determined, undermines the presumption of innocence and gives the juvenile reason to doubt the court’s objectivity. Unfortunately, predisposition investigations are sometimes started prior to adjudication, and hearing officers sometimes view the information gathered prior to adjudication.

Given the importance of the disposition hearing, it is critical that the juvenile receive competent representation by counsel. Moreover, it is important that the juvenile and his or her counsel have access to copies of all documents that are considered by the court in for- mulating the disposition—a practice supported by the U.S. Supreme Court in Kent v. United States.74 Also, all documents considered by the court should be marked as exhibits and entered as evidence, on the record, at the dispositional hearing. Despite the obvious importance of attorney representation, in some jurisdictions many, if not most, juveniles are not represented by counsel at the disposition hearing.75 Moreover, site visits by researchers from the American Bar Association Juvenile Justice Center, the Juvenile Law Center, and the Youth Law Center revealed that when attorneys did represent youths at dispositions, they often felt ill prepared because of high caseloads and the lack of resources and support staff.76

Although the predisposition report plays an important role in formulating the disposition, the hearing officer is not bound by the recommendations of the caseworker. Furthermore, state statutes, local resources, and funding level place some limits on the dispositional authority of juvenile courts. Nevertheless, hearing officers often have rather broad discretion in determin- ing the disposition,77 although courts are usually required to use the least restrictive available alternative that meets the child’s needs and ensures public safety. Dispositional alternatives available to courts may include the following options:

• probation in the juvenile’s own home (the most common disposition employed by courts)78

• placement in a relative’s home on probation, or placement in a foster home on probation • probation with restitution to the victims or probation with community service • commitment to the state for placement in a state facility • detention for a specified time period, then release on probation

on the record Recorded in some

fashion. Making audio or audiovisual recordings of critical

hearings, including adjudication and

disposition hearings, can facilitate the

appeal of a verdict and, in general, provides some

form of due process protection.

least restrictive available alternative

An available place- ment that restricts

a juvenile offender’s freedom the least

while ensuring the safety of the juvenile and the community.

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• placement in a private institutional setting funded by the court and/or the state or a state agency

• placement on intensive probation or house arrest • placement in a boot camp program • in-state or out-of-state placement in a private correctional facility • some combination of the previous alternatives Although some communities and courts may have all of the above options available to

them at disposition, many others, particularly courts in smaller jurisdictions, do not. As a result, although courts may be required by law to use the least restrictive alternative when deciding on a disposition, the lack of options available to the court makes the least restrictive alternative requirement more of an ideal than a reality.

C O m pa r at i v e F O C u s

most Countries provide attorneys to represent Children Facing Criminal penalties

Most countries, even many that do not provide attorneys for the average citizen, provide attorneys to represent children who face criminal penalties.79 Moreover, according to the United Nations Convention on the Rights of the Child, article 37, “every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent, impartial authority and to a prompt decision on any such action.”80 Unfortunately, too many youths in the United States may be deprived of these rights in the juvenile justice process.

Research on Factors Influencing Dispositional Decision Making Research on juvenile court dispositions suggests that a variety of factors may play a role in dispositional decision making, including legal factors (e.g., prior record, severity of offense, and prior juvenile justice processing decisions) and nonlegal factors (e.g., race, gender, social class, family structure, and age). The research results consistently show that prior record and severity of the offense are strongly related to the severity of the disposition.81 In addition, there is considerable evidence that previous juvenile justice decisions, such as the decision to detain a youth, influences juvenile court dispositions.82

Research on the effect of nonlegal variables on dispositions has produced mixed findings. Although the effects of age on dispositions has rarely been examined, an early study by Robert Terry found that older youths were more likely to receive severe dispositions.83 Similar findings have been found in a more recent study of one Iowa county.84 As regards the effects of race, social class, and gender, some studies indicate that minority youths, lower-class youths, and females are more likely to receive harsher dispositions.85 However, other studies have failed to find that these variables influence dispositional decisions.86 At least one study found that males are more likely to be treated more severely than females for criminal offenses but that females receive harsher dispositions for status offenses.87 Moreover, a 2008 study by Michael Leiber and Joseph Johnson in one Iowa county found that black youths were more likely to be given a community-based sanction at disposition compared with white youth, who were more likely to receive an out-of-home placement.88

Overall, the research on disposition decision making has produced mixed results. Although some studies fail to find evidence of bias at the dispositional phase of the juvenile court pro- cess, other studies suggest that, in some jurisdictions or courts, nonlegal variables such as gender, race, and social class influence dispositions, raising serious questions about bias in dispositional decision making in some juvenile courts.

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C O m pa r at i v e F O C u s

Comparative Focus on indian justice

One of the constant challenges for the contemporary juvenile court is to continually search for programs and ideas that will efficiently and effectively use taxpayers’ dollars and that will work in rehabilitating juveniles involved in the court system. to that end, juvenile courts would be well advised to look at the emerging Indian tribal courts for philosophy as well as programming.

tribal courts have played an increasingly important role in the movement toward tribal sovereignty that began in earnest in 1934 with the Indian reorganization act, also known as the Wheeler-howard act. the movement was given additional impetus in 1979 when congress passed the Indian child Welfare act (IcWa).89 among its other provisions to preserve Indian families and to protect Indian children from non-Indian adop- tions was recognition of the authority of tribes and tribal courts to intervene in state child welfare cases and even have the cases removed to tribal courts for adjudication and disposition. IcWa not only recognized the existence of tribal courts, it also acknowledged their primacy and competency in handling matters involving Indian children and Indian families. Since 1979, tribal courts have continued to develop and refine how they work with children and families, often combining both traditional and contemporary practices.

In understanding how tribal courts work, it is imperative that Indian perspectives on the role of courts in their society and the underlying philosophy about courts and the human condition be explored and explained. “to become human again”90 is the phrase used by Judge/Magistrate Mike Jackson, the Keeper of the circle of the Kake people in alaska, to describe what it means for tribal members who have committed crimes in the community to rejoin the community as full members once again. In this phrase, he has captured the essence of Indian philosophy for courts in Indian country. But to fully understand what this phrase really means, certain legal concepts and commonly held beliefs have to be discussed.

Western legal philosophy, as embodied in english common law, assumes that: (1) the best way to arrive at the truth in any dispute is to use the adversarial system; (2) out of two zealous advocates opposing each other in court, the actual facts will emerge; and (3) blame or responsibility must be assigned to someone, although, in fairness, blame can be apportioned or shared by more than one person or party. these concepts were brought to the americas by the european colonists and were, in large part, imposed upon the existing native population. the people who colonized the americas never gave much thought to the fact that the native people already had their own system of dispute resolution and justice that worked very well for them. this traditional system is worth looking at because of the valuable lessons and principles it contains.

Indian legal and justice concepts are closely intertwined with their religious and spiritual beliefs. although each tribe has its own individual belief system, there are certain common themes:

• ancestors are respected, remembered, and present in community life. What was thought and taught by them is followed as part of daily life.

• every living thing has a spirit that needs to be recognized and respected. Because human beings also have spirits, they are connected in this way with all other living things. Before tapping the maple trees for sap in the spring to make maple syrup, prayers were said and thanks were given by the Not- tawaseppi huron Band of potawatomi Indians to the maple trees for what the tribe was taking from them. to many Indians, life is seen as a “seamless continuity” in which human existence and spiritual existence were connected and coexist.

• Observations made by Indians of the living creatures that they share the earth with demonstrate that these creatures have an important place in the overall natural system and that their innate intelligence, how they adjust to the conditions of their existence, not only shows their essential spirit but provides valuable examples for humans to follow.91

• Indians focus on the connectedness of all things. the tribe is a unit that shares common ancestors, customs, and traditions that connect them with each other, with their ancestors, and with the world around them.

• the peace and harmony of the community is very important and central to the focus of Indian justice concepts.

• ethical behavior for human beings goes far beyond human society and requires respect for and sen- sitivity toward all living things.

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CrItICal thInkInG QueStIon

How might Indian approaches to justice be used in place of or in concert with present responses to youths who violate the law?

With these concepts in mind, the primary focus for Indians in dealing with criminal offenders is to reconcile them with the community. this is accomplished by the community or community representatives meeting with the offender and victim. the purpose of the meeting is to personally reconcile the offender and victim and arrive at a consensus within the community as to how this reconciliation can best be accomplished. the natural antagonism between offender and victim is not emphasized as much as the need for the community to be restored to peace and harmony. Focus is on the relationship, not on potential individual consequences. When the offender is reconciled with the community, then and only then has that person “become human again.”

What lessons can the juvenile justice system learn from the Indians? First, rather than focusing on blame and consequences, focus should be put on community peace and reconciliation. Second, both the offender and the victim are, in reality, members of the same community and may very well end up living in that community after their involvement in the juvenile justice process. this makes the community’s interest in harmony para- mount! third, systems of justice should focus on how people are connected rather than what separates them. the system should focus on restoring the sense of community rather than excluding and alienating people from the community by jailing them or otherwise removing them. Only in the very worst cases is separation felt to be appropriate, because, historically, separation from the tribe was tantamount to a death sentence.

there may be important lessons that other citizens can learn from the approach to justice practiced by Indian peoples. perhaps it is time to take a long look at that system and its traditions and consider how it might help us respond more effectively to youth offending, and what it could do to reduce the present prison and detention populations and their associated human and financial costs.

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Chapter summarY

As noted at the beginning of this chapter, the juvenile court is the heart of the juvenile justice process. It is a place where previous decisions made by personnel in other agencies, including law enforcement officers, prosecuting attorneys, probation officers, and others, are supported or altered and where a variety of decisions are made that can have an indelible effect on chil- dren, their families, crime victims, and the community at large. Furthermore, not only does the juvenile court determine the outcome of individual cases, but through its legal authority it can determine how other institutions and agencies respond to children.

Although the juvenile court occupies a central position in juvenile justice, its position as a legal institution is far from secure. Indeed, there are various trends under way that will affect the juvenile court in the near future. For example, the number of cases being processed by juvenile courts continues to grow, and this growth will tax the personnel, financial, and other resources of the juvenile court for some time to come.

Another trend is toward reformation of juvenile court organizational structures. Currently, a variety of structures are found around the country. Unfortunately, some do not allow the juvenile court the status or the resources that it deserves. Moreover, some jurisdictions still employ generalist judges who hear a variety of cases and whose commitment to juvenile and family matters is suspect. Although some jurisdictions have moved toward family courts or unified court structures that may lend more prestige to juvenile and family law matters, the extent to which these changes will continue is unknown.

Of course, juvenile courts, like other juvenile justice agencies, are made up of people who perform a variety of roles. Key personnel include the judges, a variety of quasi-judicial hearing officers (referees, masters, magistrates, or commissioners), court administrators, prosecuting and defense attorneys, and probation officers and other caseworkers. Clearly, the most impor- tant figure in the juvenile court (and juvenile justice in general) is the juvenile court judge. Indeed, the juvenile court judge makes decisions that not only influence the lives of youths and their parents, but also affect the operation and mission of the juvenile court as well as other juvenile justice agencies. Of course, the juvenile court judge and other hearing officers do not make these decisions without assistance. They are surrounded by a supporting cast of professionals who exercise considerable discretion and who themselves make a number of important decisions, including decisions that determine which youths move to the adjudica- tory and dispositional stages of the juvenile justice process.

The adjudication and disposition hearings determine which youths come within the formal jurisdiction of the court. Moreover, it is in these hearings that attorneys, probation officers, and others provide information that assists the court in determining guilt and innocence and in making decisions about how to respond to the adjudicated delinquent. Yet, despite the significance of these hearings, there is considerable evidence that youths are not always treated fairly. In some jurisdictions, youths are not afforded representation by counsel; when youths are represented by counsel, that representation is sometimes inadequate; adjudicatory and dispositional decisions are, at times, based on opinion and hearsay evidence; and gender, race, and social class bias sometimes affect judicial decision making. As a result, minority and poor youth are disproportionately involved in the formal juvenile justice process.

Clearly, serious problems confront juvenile courts in the United States, and in some jurisdictions, these problems undoubtedly affect the quality of justice that juveniles receive. However, it should not be forgotten that most juvenile court personnel, from judges to caseworkers, are highly motivated and skilled individuals who are committed to serving the best interests of children and protecting community safety—and who are frequently able to achieve both of these sometimes conflicting goals.

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key ConCeptS

adjudication hearing: The juvenile court equivalent of an adult court trial. It is at the adju- dication that the juvenile court attempts to ensure due process, find the facts, uphold the law, and make decisions concerning jurisdiction over the juvenile. balanced approach to juvenile justice: The belief that juvenile justice should give equal attention to public safety, offender accountability, the needs of victims, and the correction and treatment of juvenile offenders. best interests of the child: A catchphrase that serves as a reminder that the primary focus of a juvenile court should be on the rehabilitation of the children who come before it. continuum of care: A range of comprehensive and connected services for families and children. disposition hearing: The sentencing phase of the juvenile court process. During this phase, the court tries to establish individualized plans for juveniles that balance rehabilitation and community safety. family court: A unified trial court where all cases involving families are heard, includ- ing divorce, adoption, custody, guardianship, paternity, neglect and abuse, and, in some jurisdictions, delinquency cases. Family court advocates claim that when all family matters are handled by one court, there is less chance for overlapping services, redundant reports, and fragmented intervention. formally process: Handle a case in a way that leads to a formal court hearing. general trial court: A court of high status within a state’s legal system that hears felony criminal cases and civil cases with unlimited dollar amounts. guardian ad litem: A person, usually an attorney, who is appointed by the court to represent the best interests of a child involved in legal proceedings and with social service agencies. hearsay evidence: Secondhand evidence, such as a witness’s testimony that he or she heard someone say something. judicial administration: The daily and long-range management of a court. The judge, as head of the court, is ultimately responsible for judicial administration, but can choose to delegate many of the particular duties to others, such as a court administrator, paralegal, or administrative aide. judicial leadership: Guidance provided by a judge in the areas of programming, personnel, and budget administration. Also shown in his or her efforts to act as children’s advocate and consensus builder within the community. juvenile court: The court responsible for holding hearings and making decisions regarding the disposition of juveniles who have entered the juvenile justice process. This court plays many roles, including children’s advocate, program leader, fund-raiser, consensus builder, parent, and protector of youths and the community. juvenile drug court: Specialized juvenile court that handles cases involving substance- abusing offenders through comprehensive supervision, drug testing, treatment services, and immediate sanctions and incentives. least restrictive available alternative: An available placement that restricts a juvenile offender’s freedom the least while ensuring the safety of the juvenile and the community. on call: Available for emergency service. Some jurisdictions require that a judicial officer be available to make emergency decisions about the placement of youths who are alleged to have violated the law.

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on the record: Recorded in some fashion. Making audio or audiovisual recordings of criti- cal hearings, including adjudication and disposition hearings, can facilitate the appeal of a verdict and, in general, provides some form of due process protection. opinion testimony: Testimony based on one’s opinions as opposed to objective facts. petition: A pleading to initiate a matter in juvenile court. A petition sets forth the alleged grounds for the court to take jurisdiction of a case and requests court intervention. plea bargaining: Negotiation of an agreement between the prosecuting and defending attorneys, often with the consent of the court, to have the accused plead guilty to a reduced charge or to fewer charges than originally brought. The prosecutor benefits by gaining a certain conviction, and the defendant benefits by avoiding the possibility of a more severe sentence. pretrial discovery: Part of the pretrial process in which the defense and the prosecution request information from the other side in an effort to discover pertinent facts regarding a case. quasi-judicial hearing officer: A hearing officer empowered by the court to hear cases. Hearing officers are often attorneys and hear a variety of cases, although state law typically places some limits on their authority. rules of impeachment: Process of demonstrating that a witness is not telling the truth or does not have the knowledge to provide specific testimony. unified trial court: Comprehensive court encompassing several specialist courts, such as courts devoted to delinquency and family matters, as well as other types of courts. Also see family court.

revIew QueStIonS

1. What is the basis for claiming that the juvenile court is the center of the juvenile justice process?

2. What responsibility does the juvenile court judge have as an advocate for children? 3. How might being part of a lower-level trial court influence juvenile court operations? 4. How might being part of an upper-level trial court influence juvenile court operations? 5. Who are the key personnel in the juvenile court, and what functions do they perform? 6. What is an adjudication hearing? 7. What due process protections exist at the adjudication hearing? 8. What is the disposition hearing, and what type of information is usually presented to the

court at this hearing? 9. What is a family court, and how does it differ from a juvenile court?

10. What is the role of the prosecuting attorney in the juvenile court? 11. What is the role of the defense attorney in the juvenile court? 12. What does it mean to say that a judge is a “hands-on administrator”? Is this a good thing

to be? 13. What function does the court administrator have in the juvenile court? 14. How many different roles or functions does a caseworker (such as a probation officer)

have in the juvenile court? 15. What are the multiple factors that affect the disposition decision? How do courts weigh

them?

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addItIonal readInGS

Bernard, T. J., & Kurlychek, M. C. (2010). The cycle of juvenile justice (2nd ed.). New York: Oxford University Press.

Feld, B. C. (1993). Justice for children: The right to counsel and the juvenile courts. Boston: Northeastern University Press.

Rubin, H. T. (1985). Behind the black robes: Juvenile court judges and the court. Beverly Hills, CA: Sage. This resource contains an insightful view of juvenile court judges.

Siegel. L J., & Tracy, P. E. (2008). Juvenile law: A collection of leading U.S. Supreme Court cases. Upper Saddle River, NJ: Prentice Hall.

noteS

1. Data from National Center for Juvenile Justice. (2012). National Juvenile Court Data Archive: Juvenile court case records, 1985–2009 [machine-readable data files]. Pittsburgh, PA: Author. Retrieved from http://www.ojjdp.gov/ojstatbb/ezajcs/asp/display.asp.

2. Sickmund, M., Sladky, A., & Kang, W. (2012). Easy access to juvenile court statistics: 1985–2009. Retrieved from http://www.ojjdp.gov/ojstatbb/ezajcs/.

3. Sickmund, Sladky, & Kang, 2012. 4. Sickmund, Sladky, & Kang, 2012. 5. Calculations based on data from Puzzanchera, C., Sladky, A., & Kang, W. (2011). Easy

access to juvenile populations: 1990–2010. Retrieved from http://www.ojjdp.gov/ojstatbb /ezapop/ and from Sickmund, Sladky, & Kang, 2012.

6. Calculations based on data from Puzzanchera, Sladky, & Kang, 2011, and from Sickmund, Sladky, & Kang, 2012.

7. Bernard, T. J., & Kurlychek, M. C. (2010). The cycle of juvenile justice (2nd ed.). New York: Oxford University Press; Schwartz, I. M. (1989). (In)justice for juveniles: Rethinking the best interests of the child. Lexington, MA: Lexington Books.

8. Feld, B. C. (1988). In re Gault revisited: A cross-state comparison of the right to counsel in juvenile court. Crime and Delinquency, 34, 393–424; Feld, B. C. (1993). Justice for chil- dren: The right to counsel and the juvenile courts. Boston: Northeastern University Press; Jones, J. B. (2004). Access to council. Juvenile Justice Bulletin. Washington, DC: Office of Juvenile Justice and Delinquency Prevention.

9. Feld, 1988; Feld, B. C. (1989). The right to counsel in juvenile court: An empirical study of when lawyers appear and the difference they make. Journal of Criminal Law and Criminol- ogy, 79, 1185–1346; Grindall, L. (2003). North Carolina: An assessment of access to coun- sel and quality of representation in delinquency proceedings. Washington, DC: American Bar Association, Juvenile Justice Center; Puritz, P., Burrell, S., Schwartz, R., Soler, M., & Warboys, L. (1995). A call for justice: An assessment of access to counsel and quality of representation in delinquency proceedings. Washington, DC: American Bar Association.

10. Grindall, 2003; Puritz et al., 1995. 11. Sanborn, J. B., Jr., & Salerno, A. W. (2005). The juvenile justice system: Law and process.

Los Angeles: Roxbury.

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http://www.ojjdp.gov/ojstatbb/ezapop

12. Snyder, H. N., & Sickmund, M. (1995). Juvenile offenders and victims: A national report. Washington, DC: Office of Juvenile Justice and Delinquency Prevention.

13. NCJJ. (2006). State juvenile justice profiles. Retrieved November 28, 2008, from http://www .ncjj.org/stateprofiles/asp/using.asp; Rubin, H. T. (1998). The juvenile court landscape. In A. R. Roberts (Ed.), Juvenile justice: Policies, programs, and services (2nd ed.). Chicago: Nelson-Hall.

14. Massachusetts Court System. (n.d.). Juvenile court department. Retrieved from http:// www.mass.gov/courts/courtsandjudges/courts/juvenilecourt/index.html.

15. Rubin, H. T. (1985). Juvenile justice: Policy, practice, and law (2nd ed.). New York: Random House, p. 350.

16. Rubin, 1998. 17. Siegel, L. J., & Senna, J. J. (1997). Juvenile delinquency: Theory, practice, and law (6th ed.).

St. Paul, MN: West Group. 18. Rubin, H. T. (2003). Juvenile justice: Policies, practices, and programs. Kingston, NJ: Civic

Research Institute. 19. Rubin, 1985. 20. Siegel & Senna, 1997. 21. Rubin, H. T. (1989). The juvenile court landscape. In A. R. Roberts (Ed.), Juvenile justice:

Policies, programs, and services. Chicago: Dorsey Press. 22. Rubin, 1998. 23. Rubin, 1989. 24. State of Illinois. (2012). Welcome to Illinois courts. Retrieved from http://www.state.il.us

/court/CircuitCourt/CCInfoDefault.asp. 25. Office of the Chief Judge Circuit Court of Cook County. (2000–2011). Juvenile Justice

and Child Protection Department. Retrieved from http://www.cookcountycourt.org/about /index.html.

26. National Association of Drug Court Professionals. (n.d.). Facts on drug courts. Retrieved from http://www.nadcp.org/whatis/.

27. Hora, P. F., Schma, W. G., & Rosenthal, J. T. A. (1999). Therapeutic jurisprudence and the drug treatment court movement: Revolutionizing the criminal justice system’s response to drug abuse and crime in America. Notre Dame Law Review, 74, 439–537.

28. Schma, W. (2000). Therapeutic jurisprudence. Williamsburg, VA: National Center for State Courts.

29. Snyder, H. N., & Sickmund, M. (2006). Juvenile offenders and victims: 2006 national report. Washington, DC: Office of Juvenile Justice and Delinquency Prevention.

30. Rubin, 2003. 31. Rubin, 1985. 32. State of Connecticut Judicial Branch. (n.d.). Online Media Resource Center. Retrieved from

http://www.jud.ct.gov/external/media/faq.htm. 33. South Carolina Judicial Department. (2010). How judges are elected in South Carolina.

Retrieved from http://www.judicial.state.sc.us/judges/howjudgeselected.cfm. 34. Siegel & Senna, 1997. 35. Rubin, H. T. (1985). Behind the black robes: Juvenile court judges and the court. Beverly

Hills, CA: Sage. This resource contains an insightful view of juvenile court judges.

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http://www.ncjj.org/stateprofiles/asp/using.asp

http://www.state.il.us/court/CircuitCourt/CCInfoDefault.asp

http://www.cookcountycourt.org/about/index.html

36. National Center for State Courts. (2012). Survey of judicial salaries (Vol. 37). Williamsburg, VA: Author.

37. Rubin, 1998. 38. Rubin, 1998. 39. Rubin, 1989, p. 114. 40. Drowns, R. W., & Hess, K. M. (1995). Juvenile justice (2nd ed.). St. Paul, MN: West. 41. Rubin, 1989. 42. Bortner, M. A., & Reed, W. L. (1985). Preeminence of process: An example of refocused jus-

tice research. Social Science Quarterly, 66, 413–425; Frazier, C. E., & Bishop, D. M. (1985). Pretrial detention of juveniles and its impact on case dispositions. Journal of Criminal Law and Criminology, 76, 1132–1152; Secret, P. E., & Johnson, J. B. (1997). The effect of race on juvenile, justice decision making in Nebraska: Detention, adjudication, and disposition, 1998–1993. Justice Quarterly, 14, 445–478; Wu, B. (1997). The effect of race and juvenile justice processing. Juvenile & Family Court Judges, 48, 43–51.

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(5th ed.). New York: McGraw-Hill. 45. Rubin, H. T. (2003). Juvenile justice: Policies, practices, programs. Kingston, NJ: Civic

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9781449667603_CH8

8 Preadjudication Processes in Juvenile Justice

Introduction
The Juvenile Justice Intake Process
Additional Juvenile Justice Preadjudication Processes
Legal Issues
Chapter Summary
Key Concepts
Review Questions
Additional Readings
Notes

9781449667603_CH9

9 The Transfer of Juveniles to Criminal Court

Introduction
The Purpose of Transfer of Juveniles to Criminal Court
Mechanisms for the Transfer of Juveniles to Criminal Court
Trends in the Use of Transfer
Due Process and Transfer Decisions
Research on the Use and Effectiveness of Transfer
Other Developments in the Use of Transfer
Standards Governing Transfer Decisions
Correctional Programming for Juveniles Convicted in Criminal Court
Legal Issues
Chapter Summary
Key Concepts
Review Questions
Additional Readings
Cases Cited
Notes

9781449667603_CH10

10 The Contemporary Juvenile Court

Introduction
Case Trends and Types of Cases Processed in Juvenile Court
The Philosophy Behind Case Processing in the Juvenile Court
The Structure of the Juvenile Court
Juvenile Court Personnel: The Key Players
The Adjudication and Disposition Hearings
Chapter Summary
Key Concepts
Review Questions
Additional Readings
Notes