Since the mid-1990s, fear of juvenile crime and criminals has undermined what was considered the norm for many years; that is, the idea that most crimes committed by juveniles should be tried in a juvenile court. Using a punitive adult model for adolescents and preteens required the courts to assume that the youthful transgressor was equal to an adult in terms of culpability; naturally, there was and is widespread disagreement on this issue. Some argue that it is the height of folly to think that an average teenager is incapable of understanding criminal proceedings, whereas others state that it is highly unethical for judges and district attorneys to prosecute adolescents in an adult venue (Steinberg 2005). Other controversies question the wisdom, for example, of placing youths in institutional situations where they are likely to experience physical and/ or sexual abuse.
II. Studies on Juveniles and Justice
III. Key Events
In 1899, the first juvenile court system within the United States was established in Cook County, Illinois; shortly thereafter, juvenile courts spread to all states of the union.
Within juvenile courts, adolescent offenders are treated differently than their adult counterparts. For instance, what is considered legal for adults may not be legal for juveniles. Violations known as status offenses—such as being truant, running away from home, and using alcohol—are behaviors that are not against the law for adults but are considered infractions if performed by juveniles. The primary aim of juvenile courts is to guide, not punish, adolescents who have violated the law. In addition, although adult law focuses on the offense, juvenile law focuses on the offender, and attempts are made to rehabilitate any transgressors. Other differences include the following: (1) juveniles are adjudicated rather than pronounced guilty, (2) juvenile records may be sealed at the judge’s discretion, and (3) juveniles do not have the right to a jury trial. Moreover, juveniles are usually placed in special facilities, away from hardened, adult criminals. With serious crimes, however, exceptions are made ( Jonson-Reid 2004).
Law enforcement has the option of preventative detention, meaning that a youth may be detained for his or her protection or the community’s protection. Because the juvenile court system is highly individualized, sentences vary from court to court and state to state and may cover a wide range of community-based and residential options. The disposition is based on an adolescent’s history and the severity of his or her offenses and includes a significant rehabilitation component. Moreover, the disposition can be for an unspecified period; the court has the authority to send a youth to a specific facility or program until he or she is deemed rehabilitated or until he or she reaches the age of majority. The disposition may also include a restitution component and can be directed at people other than the offender, such his or her parents. Parole combines surveillance with activities to reintegrate the juvenile into the community.
One reason juveniles are transferred to criminal court is the general belief that if adolescents (both violent and nonviolent) are exposed to the adult criminal justice system, any criminal urges would be extinguished. Unfortunately, the literature does not back this supposition. A 1996 study looked at 2,738 juvenile offenders transferred to criminal court in Florida with a matched sample of nontransferred juveniles. Juveniles tried as adults were more likely to be incarcerated, incarcerated for longer periods than those who remained in the juvenile system, and had a higher recidivism rate. Within two years, they were more likely to reoffend, to reoffend earlier, to commit more subsequent offenses, and to commit more serious subsequent offenses than juveniles retained in the juvenile system (Bishop, Frazier, Lanza-Kaduce, and Winner 1996).
Studies on Juveniles and Justice
During 2003, a study titled Adolescent Development and Juvenile Justice, conducted by the John D. and Catherine T. MacArthur Foundation Research Network, examined more than 1,400 people between the ages of 11 and 24 in Philadelphia, Los Angeles, northern and eastern Virginia, and northern Florida. Each participant was given an intelligence test and later asked to respond to several hypothetical legal situations, such as whether confessing to a police officer if he or she committed a crime was a smart move. Interestingly, the researchers found that one-third of those aged 11 to 13 and one-fifth of those aged 14 to 15 could not understand the proceedings regarding their alleged crimes, nor could they supply help to their defense lawyers. The study recommended that states reconsider the minimum age at which juveniles may be tried as adults or that a system for evaluating defendants’ competency be created.
The report was released on the heels of a 10-year effort by states trying to make it easier to try children as adults (Steinberg 2005).
The question is this: Is it OK to place children with adults in prison, where the older convicts will likely teach them how to be successful criminals and where they will probably experience both physical and sexual abuse? For example, one 17-year-old adolescent held with adult convicts in an Idaho jail was sexually tortured and murdered by the adult inmates. In Ohio, a 15-year-old girl was sexually assaulted by a deputy jailer after being placed in an adult jail for a minor infraction, and in Kentucky, approximately 30 minutes after a 15-year-old was put in a jail cell following an argument with his mother, he hanged himself. In one year, four children held in Kentucky jails committed suicide (Zeidenberg and Schiraldi 1997).
In 1989, a study compared how youths were treated at a number of juvenile training schools with those serving time in adult prisons. Unsurprisingly, five times as many adolescents held in adult prisons answered yes to the question “Has anyone attempted to sexually attack or rape you?” In addition, the statistics regarding youth rape in prisons were coupled with the fact that children placed with adults were twice as likely to report being physically abused by staff . The juveniles in adult prison were also 50 percent more likely to report being attacked with a weapon. Close to 10 percent of the youth interviewed reported a sexual violation.
Little research exists regarding any quantitative data on rape, suicide, and assault rates among the thousands of juveniles sentenced to adult prisons each year or the 65,000 children who pass through the jail system. Several states classify suicide under deaths due to “unspecified” causes in their yearly reports, thus making the problem invisible. Rape in prison is listed under inmate assault; hence, the problem is opaque. Approximately 25,000 children each year have their cases transferred to criminal court instead of being tried in juvenile courts, where the majority of convicted defendants are usually set free by the time they turn 21 (Senate Committee on the Judiciary 2000).
Many judges will not prosecute youths as adults, as in the case of Nathaniel Abraham. At age 11, he was charged with first-degree murder and was to be prosecuted under a 1997 Michigan law that allowed adult prosecutions of children of any age in serious felony cases. Abraham was eventually convicted of second-degree murder, but the presiding judge felt that the new law was flawed and sentenced him to youth detention rather than life imprisonment (Steinberg 2005). In Texas, Lacresha Murray, an 11-year-old girl, was convicted twice for the death of a 2-year-old who spent the day in her home. After extensive questioning, without guardians or an attorney present, she admitted that she might have dropped and then kicked the toddler. The presiding judge dismissed all criminal charges leveled against her (Fritsch, Caeti, and Hemmens 1996).
According to the National Center for Juvenile Justice, a private, nonprofit research group, between 1992 and 1999, every state except Nebraska passed laws making it easier for juveniles to be tried as adults. Even though Nebraska passed no new laws on the subject during that seven-year period, it is among the 14 states and the District of Columbia that allow prosecutors to file charges against juveniles in criminal court (Fritsch, Caeti, and Hemmens 1996). Each of the 50 states has specific provisions that determine whether certain juveniles may be tried as adults in criminal court (for example, those charged with capital crimes or other serious felonies). This procedure is commonly called a transfer to criminal court and has three primary mechanisms: judicial waiver, statutory exclusion, and concurrent jurisdiction.
- Forty-five states have judicial waiver provisions, in which the juvenile court judge has the vested authority to waive juvenile court jurisdiction and transfer the case to criminal court if he or she feels that the crime committed warrants more punishment than is commonly meted out within the juvenile justice system.
- Threshold criteria that must be met before the court may consider waiver: generally a minimum age, a specified type or level of offense, a sufficiently serious record of previous delinquency, or some combination of the three.
- In all states in which discretionary waiver is authorized, the juvenile court must conduct a hearing at which the parties are entitled to present evidence bearing on the waiver issue. Generally, state law specifies factors a court must weigh and findings it must make in order to arrive at the determination that a juvenile is no longer amenable to treatment as a juvenile.
- The prosecution usually bears the burden of proof in a discretionary waiver hearing; however, some states designate special circumstances under which this burden may be shifted to the child. Generally, a prosecutor seeking a waiver to criminal court must make the case for waiver by a preponderance of the evidence.
- Twenty-nine states have statutory exclusion laws excluding youths who commit certain serious offenses and/or repeat offenses from the jurisdiction of the juvenile court. These laws are different from mandatory waiver laws in that, with statutory exclusion, the adult court has jurisdiction over a case from the beginning, without a juvenile court waiver hearing.
- Seventeen states allow for concurrent jurisdiction of offending youth in both the juvenile and adult court systems. Adolescents aged 14 or older who commit certain felonies are subject to transfer to adult criminal court for prosecution at the discretion of the judge. Transfer proceedings are mandatory in instances of murder or aggravated malicious wounding. Prosecutors in instances of lesser felonies may also directly file for jurisdictional transfers. Once initiated, any transfer to adult court may be petitioned for reverse waiver back to juvenile court (Fritsch, Caeti, and Hemmens 1996).
In addition to state governments, the federal government also has the option of treating children as adults. There are many federal rules regarding juveniles, too many to detail here, including Federal Rule 106, which states the Federal Bureau of Investigation and other federal law enforcement agencies should aid local and state authorities in the apprehension of gang members. The rule’s language is condescending, stating that local law enforcement has become frustrated with the state criminal systems and that federal assistance is sorely needed. Most defendants serve a bare minimum of time, however, and although the adult criminal system is ineffective in curtailing gang violence, the juvenile system is much worse. Most juvenile delinquents are handled by the state and are usually released immediately or lightly punished; thus, the states need guidance from the federal government (U.S. Department of Justice 1997b).
On the other hand, violent criminals (both adult and adolescent) are gaining a keen respect for the federal criminal system. They are aware of the abolition of parole as well as the severe guidelines and enhanced sentencing for drug- and firearms-related federal crimes. It is imperative for the safety of the citizens of the United States that U.S. attorneys’ offices become more involved in seeking out the most serious juvenile offenders for prosecution as delinquents or transferring them for criminal prosecution as adults (U.S. Department of Justice 1997a); all may be found in the Criminal Resource Manual (U.S. Department of Justice 1997c).
Federal Rule 126 states that juveniles charged with serious offenses and who have prior criminal history and have proved unreceptive to treatment in the juvenile justice system may be considered for transfer to adult status. Any decision to transfer should be based upon discussion with the investigating agents, a prosecution policy that targets the most serious juvenile offenders, and a comparison of effective alternatives that may be available in the given state jurisdiction (U.S. Department of Justice 1997a).
Federal Rule 140 discusses the mandatory transfer of juveniles to adult status. Adult status for juveniles is mandatory if the acts were committed after his or her 16th birthday and would be tried as felonies involving the use, attempted use, or threatened use of physical force against another. In addition, if a substantial risk of physical force was used against another in committing the offense or if a juvenile has previously been found guilty of an act for which an adult would face prison time, such an offender may be transferred to adult status. Finally, the act must be one of the offenses set forth in this rule or an offense in violation of a state felony statute (U.S. Department of Justice 1997d).
Several states have laws saying that it is legal to sentence an adolescent to death if he or she was convicted of a capital offense. On March 1, 2005, the U.S. Supreme Court in Roper v. Simmons struck down the use of capital punishment for offenders committing crimes before the age of 18. In 1993, Christopher Simmons (who was 17 at the time) formulated a plan with two younger friends to murder Shirley Crook. In essence, the plan was to commit burglary and murder by breaking and entering, tying up Ms. Crook, and then tossing her from a bridge. At the trial’s conclusion, Simmons was sentenced to death. He first moved for the trial court to set aside the conviction and sentence, citing, in part, ineffective assistance of counsel. His young age and impulsivity, along with a troubled background, were brought up as issues that Simmons claimed should have been raised at the sentencing phase. The trial court rejected the motion, and Simmons appealed. Finally, the case was argued in the U.S. Supreme Court. Justice Anthony Kennedy, writing for the majority, cited sociological and scientific articles stating that juveniles are immature and lacking a sense of responsibility as compared with adults (Roper v. Simmons 2005).
The Court noted that in recognition of the comparative immaturity and irresponsibility of juveniles, almost every state prohibited those younger than age 18 from voting, serving on juries, or marrying without parental consent. The studies also found that juveniles are more vulnerable to negative influences and outside pressures, including peer pressure. They have less control, or experience with control, over their own environment. Th us, the Court held that executing someone who was younger than age 18 at the time of the murder was committed was cruel and unusual punishment (Roper v. Simmons 2005). In a subsequent case from 2010, Graham v. Florida, the Court determined that life imprisonment for a juvenile offender convicted of any crime other than homicide likewise constitutes cruel and unusual punishment and must not be applied (Liptak 2010).
Little disagreement exists regarding the minute number of teens who should be tried in the adult criminal justice system (with the prominent exception of the death penalty) if they pose a sincere threat to those around them. Likewise, there is little bickering about severely delinquent adolescents (rapists, murderers, arsonists, etc.) receiving commensurate punishment for the scope of their crimes. However, thousands of young people are being prosecuted daily within the adult system, although many are charged with nonviolent crimes. This should give cause for quiet reflection, because the primary reason for youth courts was and is to adjudicate young people who had broken the law in a nonviolent fashion. If society punishes adolescents as it does adults, even if their transgressions do not warrant it, does the get-tough policy benefit the public?
Sadly, the prevailing mindset of many lawmakers is “If you do the crime, do the time—regardless of age.” Thus, many adolescents and preteens whose crime was of a nonviolent nature will remain incarcerated with adult criminals, who will continue their physical and sexual abuse of children—all at taxpayer expense.
Cary Stacy Smith and Li-Ching Hung
- Bishop, D. M., C. E. Frazier, L. Lanza-Kaduce, and L. Winner, “The Transfer of Juveniles to Criminal Court: Does It Make a Difference?” Crime and Delinquency 42 (1996): 171–191.
- Butts, J., and G. Halemba, Waiting for Justice: Moving Young Offenders through the Juvenile Court Process. Pittsburgh, PA: National Center for Juvenile Justice, 1996.
- Dawson, R. O., “The Future of Juvenile Justice: Is It Time to Abolish the System?” Journal of Criminal Law and Criminology 81 (1990): 136–155.
- Fritsch, E. J., T. J. Caeti, and C. Hemmens, “Spare the Needle but not the Punishment: The Incarceration of Waived Youth in Texas Prisons.” Crime and Delinquency 42, no. 4 (1996): 593–609.
- Jonson-Reid, M., “Child Welfare Services and Delinquency: The Need To Know More.” Child Welfare 83, no. 2 (2004): 157–174.
- Kupchik, A., Judging Juveniles: Prosecuting Adolescents in Adult and Juvenile Courts. New York: New York University Press, 2006.
- Liptak, Adam, “Justices Limit Life Sentences for Juveniles.” New York Times (May 17, 2010). http://www.nytimes.com/2010/05/18/us/politics/18court.html
- Puzzanchera, C. M., “Delinquency Cases Waived to Criminal Court, 1988–1997.” OJJDP Fact Sheet. Washington, DC: U.S. Government Printing Office, 2000.
- Roper v. Simmons, 543, U.S. 551 (2005).
- Scott, Elizabeth S., Rethinking Juvenile Justice. Cambridge, MA: Harvard University Press. 2008.
- Senate Committee on the Judiciary, “Putting Consequences Back into Juvenile Justice at the Federal, State, and Local Levels.” Washington, DC: Government Printing Office, 2000.
- Steinberg, L., A Prospective Study of Serious Adolescent Offenders in Philadelphia. Philadelphia: Pennsylvania Council on Crime and Delinquency, 2005.
- U.S. Department of Justice, “Rule 106, Federal Involvement in Prosecuting Gang Activity.” Title 9: Criminal Resource Manual. Washington, DC: U.S. Government Printing Office, 1997a.
- U.S. Department of Justice, “Rule 126, Treating Juveniles as Adults for Criminal Prosecution— Generally.” Title 9: Criminal Resource Manual. Washington, DC: U.S. Government Printing Office, 1997b.
- U.S. Department of Justice, Title 9: Criminal Resource Manual. Washington, DC: U.S. Government Printing Office, 1997c.
- U.S. Department of Justice, “Rule 140, Mandatory Transfer of Juveniles to Adult Status.” Title 9: Criminal Resource Manual. Washington, DC: U.S. Government Printing Office, 1997d.
- Zeidenberg, J., and V. Schiraldi, The Risks Juveniles Face When They Are Incarcerated with Adults. Washington, DC: Justice Policy Institute, 1997. http://webmail.cjcj.org/pubs/risks/risks.html.