However, the prosecutor is not the only person who can seek a transfer. Juvenile court judges can also begin transfer proceedings (Michon, 2012). Furthermore, in some states there are automatic transfer laws, which require that juveniles over a certain age be tried as adults when they commit specific crimes, usually violent crimes like rape or murder. In states without automatic transfer laws, the defendant is entitled to a hearing prior to being transferred. At this hearing, which is known as the waiver hearing, fitness hearing, or certification hearing, the prosecutor has to show probable cause that the defendant committed the crime (Michon, 2012).
Establishing probable cause is only the first step in the waiver process. Once probable cause is established, it becomes the court's duty to determine whether the juvenile is likely to be rehabilitated. This is the most difficult part of the determination because it involves predicting the future behavior of a defendant. To determine this, the court looks at the defendant's background, criminal history, and willingness to enter into treatment (Michon, 2012). If the judge determines that the defendant is not likely to be rehabilitated, then he transfers the case to the adult criminal justice system. Once in the adult system, the case re-starts, and the defendant faces the entire adult criminal justice process.
The waiver procedure varies slightly in states with automatic transfer laws. There, unless a defendant objects, defendants who are of a certain age and have committed specified crimes are automatically transferred to the adult criminal justice system. "Juveniles subject to an automatic transfer can still request a transfer hearing in juvenile court. During that hearing -- called a reverse waiver or reverse transfer hearing -- the juvenile (through an attorney) has the burden of convincing the judge to reverse the automatic transfer and allow the juvenile to be tried in juvenile court" (Michon, 2012).
Why Some Cases are Removed
What types of cases prompt the prosecutor or the judge to seek removal? What types of offenses are considered so heinous that they would trigger a state's automatic removal statute? For the most part, cases are removed from the juvenile justice system to the adult justice system based on the facts of the underlying offense. Generally, an offender must commit a violent offense in order to be removed to the adult criminal justice system. The two offenses that most commonly trigger removal are sexual assault and homicide. However, it is important to realize that while those crimes are the ones most likely to trigger removal to the adult criminal justice system, it is certainly possible for an offender to be removed to the adult court system without committing one of those crimes, as long as the underlying crime is considered of sufficient severity.
While the crime committed plays a role in the waiver decision, what is interesting to note is that removal is not necessarily predicated on the facts of the crime charged. This becomes even clearer when examining the decertification process, whereby juvenile offenders seek to be transferred back into the juvenile justice system in states where certain crimes trigger automatic removal to the adult criminal justice system. Whether offenders are decertified does not seem dependent upon the circumstances of the crime, but rather on the legal factors surrounding the question (Jordan & Myers, 2007, p.188). What this suggests is that the factors underlying removal decisions may be more important to the court than the circumstances of the actual criminal offense. Therefore, it is clear that waiver is not an arbitrary process, but the result of a reasoned analysis of, not just the crime a defendant has committed, but also of what is known about the defendant.
Concerns about Trying Juveniles as Adults
Although there may be compelling reasons to try juveniles as adults, some people have real reservations about treating children as if they are adults. Many of them suggest that because children are neurologically different than adults, they should not be treated like adults in the criminal context. In fact, there are humanitarian concerns about the prosecution of children. The reality is that juveniles face greater jeopardy in the adult court system than they would in the juvenile justice system. First, the adult court system offers the possibility of longer sentences, up to and including life imprisonment. Second, the adult court system has very few sentencing options; generally a defendant can be punished or released, while there are far greater opportunities in the juvenile justice system. Juveniles who are convicted in the adult system may serve time in the adult prison system, which may expose them to tremendous dangers. There is a greater stigma attached to criminal convictions than delinquency adjudications, and juvenile records are sealed, while adult criminal records are not (Michon, 2012).
All of these reasons suggest that society use caution when trying children as adults. However, it is critical to realize that waiver statutes do not argue against the use of caution. Even in states with automatic waiver procedures provide opportunities for defendants to seek reverse waiver and bring their cases before the juvenile court. Juveniles who face the adult criminal justice system actually get two opportunities to seek leniency, something that adult offenders cannot access in the same manner.
Arguments in Favor of Trying Juveniles as Adults
Perhaps the most salient argument in favor of trying juveniles as adults is that there is public support for the process. Just as juvenile courts did not emerge in a vacuum, the process of trying juveniles is not developing in a vacuum. Public opinions and perceptions about juveniles are informing how the public believes that juvenile offenders should be treated. Currently, people want courts to have the ability to transfer certain offenders out of the juvenile justice system. This is not something that people want for all cases. Instead, research suggests that, "people want transfer used sparingly and selectively and that support is greatest when they believe that the adult system can provide effective rehabilitation as well as punishment" (Applegate et al., 2009, p.51). However, there is clearly support for the notion that some offenders have taken actions that should place them outside of the protective realm of the juvenile justice system and into the adversarial realm of the adult criminal justice system. The reality is that kids are getting more frightening.
Many people believe that the primary purpose of obtaining a juvenile waiver is to ensure that juveniles receive longer sentences. This is generally the case, as juveniles tried in the adult system are generally sentenced to longer periods of time than juveniles tried in the juvenile justice system (Fristsch et al., 1996, p.593). However, when one examines time-served, juvenile offenders who are tried as adults may actually serve less time than those tried as juveniles because of the greater ability to sentence reductions and early release in the adult system (Fristsch et al., 1996, p.593). Moreover, there does not seem to be a real difference in how the adult systems and juvenile systems treat offenders, when one examines the two systems on legal and case processing factors (Kupchik, 2006, p.335). As a result, some would argue that there is no purpose in trying a juvenile as an adult. However, that viewpoint is naive. There is a qualitative difference in serving a prison term in an adult facility that separates the punishment from detention in a juvenile justice facility, not simply a quantitative difference in the length of the sentences offenders are likely to receive in the different components of the criminal justice system.
Furthermore, it is important to realize that not all children who are tried as adults lose all of the protections that they would receive as juvenile offenders. There has actually been a recent change in juvenile justice proceedings: blended sentencing. "Unlike traditional juvenile court or adult court waiver processes, blended sentencing statutes provide authority to juvenile or adult court judges to sanction delinquent offenders with juvenile and adult dispositions" (Trulson et al., "A problem of fit," 2011, p.263). In most blended sentence scenarios, a juvenile has the opportunity to prove rehabilitation before the adult portion of the sentence takes effect; therefore, those juveniles who show that they are able to be rehabilitated, by being rehabilitated, are not punished as traditional adult offenders, while those juveniles who have resisted rehabilitation efforts are not released simply because they age out of the juvenile justice system.
The final argument in favor of trying juveniles as adults it that children are becoming increasingly violent. Violent crime perpetrated by children is not an anomaly; gangs and drugs have impacted youth culture in such a way that in many areas children are more deadly, not less deadly, than adult offenders. Moreover, many of these children, once they have committed an initial violent offense, are already committed to a criminal lifestyle and possibly beyond any hope of rehabilitation. An examination of offenders who were eligible for blended sentences but were released prior to serving the…