May 3, 2010
The rise of violent juvenile crime in the recent past has called for a more punitive response by the criminal justice system. For example, it is no longer even discussed whether certain juveniles will be prosecuted in the adult system, because automatic forms of juvenile transfer have increased during the current “get tough” phase. This approach toward the adjudication of juveniles is used to address serious or chronic adolescents (Sellers, 2009). Unfortunately, relying on automatic waivers has caused a number of processing, correctional and recidivism issues. However, perhaps the largest concern is that juveniles are not developmentally or emotionally capable of being processed and treated as an adult. Investigators have shown how developmental immaturity negatively affects a waived juvenile’s ability to be deemed ‘fit for trial’ in the adult legal system (Sellers, 2009).
Nearly 200,000 juveniles are tried as adults each year, and approximately 12% of these adolescents are younger than sixteen (Sellers, 2009). The legal ability to adjudicate youths in the criminal justice system is the waiver process; three waiver forms exist. The judicial waiver allows the judge to review the evidence regarding the youth’s willingness to participate in treatment and his potential threat to society. Usually, this decision is made using the seriousness of the offense and the individual’s criminal history as major factors. The legislative offense exclusion, or statutory waiver, allows legislatures to create laws and policies regarding the juvenile justice system. This approach is the simplest way to emphasize the seriousness of the crime and to promote a retributive focus (Sellers, 2009). The last strategy is the prosecutorial waiver, or “direct file.” Using this approach, the prosecutor is granted the discretion to choose whether a youth is charged in criminal or juvenile court. Judicial waivers allow for a hearing to determine the adolescent’s maturity level, amenability to treatment and potential danger to society. However, statutory and prosecutorial waivers do no evaluate these factors; a mandatory waiver requires only that there is probable cause to prosecute. New statutory waiver laws enacted in 1994 increased the number of juveniles automatically transferred to criminal by 73% (Sellers, 2009). This is problematic to say the least, because statutory exclusion laws force juveniles into the adult system, exposing them to adult criminal adjudication and punishment without ever evaluating whether the child is capable of fully participating in their proceedings. Characteristics such as psychological maturity, social influences and prior record are all important factors in criminality, and should be considered when deciding how to punish, deter or rehabilitate juveniles (Sellers, 2009). Furthermore, automatic transfers ensure adjudication will rely solely on the offense rather than the offender, effectively eliminating discretion. While it may sound comforting to hear that discretion is reduced, it is actually very dangerous to remove power from the judges and lawyers: laws are written vaguely so that they may be interpreted to fit almost every situation. If discretion is removed, all individuals are treated equally severely. This means that in the eyes of the law, a six year old who hits a friend while roughhousing on the baseball field will receive the same sentence as a teen that violently attacks a rival with a bat. Obviously, it is necessary to consider the circumstances before sentencing.
The use of automatic transfer waivers is based on the rationale that harsher sanctions will serve as a deterrent for future juvenile crime. Unfortunately, statutory exclusion laws and direct-file statures have been found to provide no significant or lasting deterrent for juvenile crime (Sellers, 2009). In fact, New York...
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