Children as adults: the transfer of juveniles to adult courts and the potential impact of Roper v. Simmons.

• Author: Pagnanelli, Enrico

INTRODUCTION

In the aftermath of the Supreme Court's groundbreaking decision in Roper v. Simmons, (1) the American system of juvenile jurisprudence is now at an important crossroad. Previously, a misguided public sentiment and an increasing tendency for the court system to provide juveniles with constitutional procedural safeguards had led the juvenile court system to converge with the criminal courts. (2) The result was an increase in juvenile transfer to adult courts, and in turn, a failure to live up to the original rehabilitative goals of the juvenile justice system: to protect the public and to rehabilitate juvenile offenders. (3) Roper adopts a groundbreaking understanding of juvenile development, and the rationale undergirding its holding may have extreme implications for transfer policies. The reasoning in Roper, that violent juvenile offenders have a diminished capacity for their actions that warrants a bright line rule when confronting harsh punishment, (4) and additional evidence highlighting the failure of transfer policies to rehabilitate and protect the public, (5) should incite American lawmakers to reexamine and correct transfer policies. Part I of this Note examines the origins and evolution of treating juveniles as adults for violent offenses, including a review of public sentiment and constitutional case law. Part II reviews the dynamics of transfer and other procedural processes that treat juveniles as adults within our system, and proposes that transfer fails both juveniles and efforts to protect the public. Part III reviews the Supreme Court's reasoning in Roper v. Simmons, a landmark case that set a bright line rule barring the use of the death penalty for juveniles. (6) And finally, Part IV analyzes the implications of Roper on the growing trend of the transfer of juveniles to the criminal court system. The legal precedent established in Roper--that a juvenile's diminished culpability due to social, physiological, and psychological underdevelopment warrants a bright line rule for precluding the use of the most severe forms of punishment for violent offenders (7)--demands a reexamination of current transfer policies and underscores an ideological shift towards a rehabilitative focus in juvenile jurisprudence.

1. REHABILITATION OR RETRIBUTION

   During the 1950s, legislators began to question "whether the juvenile court could successfully rehabilitate youth." (8) Namely, many believed that the institutionalization of juveniles was ineffective and that juveniles lacked procedural safeguards in the adjudication process. (9) Several Supreme Court cases originating in the 1960s addressed these concerns, expanding due process rights for juveniles, but not without substantially impacting the increasing mechanisms and volume of transfer. These cases integrated procedural due process rights from the criminal court system into juvenile proceedings, guaranteeing the growing trend of transfer, and even leading to a reaction by many states to create laws circumventing these new procedural rights to expedite the transfer process. (10)

   1. The Expansion of Due Process Rights for Violent Juvenile Offenders and the Transfer of Juveniles to the Criminal Court System

      "From its inception ... the juvenile court could relinquish its jurisdiction and subject some young offenders to prosecution in adult criminal courts." (11) But in Kent v. United States, (12) the Supreme Court held that where juvenile court jurisdiction is waived as a result of judicial waiver, a heating with the essentials of due process must be provided. (13) The case involved a sixteen-year old boy convicted as an adult in criminal court of burglary, robbery, and rape. (14) In deciding whether or not the boy had been properly denied exclusive jurisdiction by the juvenile court of the District of Columbia, the Supreme Court created a due process-like framework for courts to consider when waiving a juvenile's jurisdiction and allowing transfer. (15)

      While many states reexamined their waiver statutes to abide by the criteria laid out in Kent, (16) a large number of states took steps to overcome this procedural boundary and created "automatic transfer" or "legislative waiver" statutes. (17) In fact, in some jurisdictions, district attorneys were given the power to make transfer decisions without providing juveniles any of the procedural safeguards specified in Kent. (18) Others wrote statutes that defined 'juvenile' in such a way as to "exclude persons of a certain age when they were charged with certain crimes." (19)

      In In re Gault, (20) on an appeal from the Supreme Court of Arizona, the United States Supreme Court further extended constitutional due process rights to accused juvenile offenders. (21) Gault and its progeny provided minors with the following constitutional due process safeguards: "representation by counsel; notice of charges; confrontation and cross-examination of witnesses; protection against self-incrimination; protection from double jeopardy; proof of delinquency charges 'beyond a reasonable doubt'; and protection from judicial transfer to criminal court without hearing, effective counsel, or a statement of reasons." (22) Other decisions also expanded the convergence of procedural due process into juvenile delinquency proceedings. (23)

      The intention in Kent and Gault was clear: to provide juveniles the same procedural rights afforded to adults. The effect--presumably unintended--was the erosion of the rehabilitative ideal of juvenile justice. (24) The judicial and legislative bent became not how to treat children differently from adults, but how to treat them the same. Gault undermined the ideological assumptions of the juvenile system and "engrafted some formal procedures at trial onto the [juvenile court's] individualized treatment schema[, and thereby] ... fostered a procedural and substantive convergence with criminal courts." (25) A new retributive stance on juvenile delinquency translated into various responses: "purpose clauses" in some states were modified to focus on punishment as a goal; some juvenile proceedings became public; and in some jurisdictions, the age for delinquency adjudication was lowered and "determinate and/or mandatory minimum sentences" (26) were mandated for some offenses.

      Consequently, Kent, Gault, and their progeny merged the juvenile court system with the criminal court system. The once rehabilitative ideal of the juvenile justice system gave way to aggressive implementation of transfer policies and procedures, representing a new retributive focus. For example, in United States v. Bland, (27) the D.C. Circuit upheld a District of Columbia statute (notably, created a few years after Kent) that excluded people aged 16 and up who committed a murder, rape, or other serious offenses from the definition of "juvenile." (28) The D.C. Circuit acknowledged in upholding the statute against due process and equal protection claims that the laws were a response to "substantial difficulties in transferring juvenile offenders charged with serious felonies to the jurisdiction of the adult court under present law...." (29) This judicial endorsement of transfer policy and the concomitant loss of faith in the rehabilitative capabilities of the juvenile system, combined with the influx of procedural safeguards, all reinforced the new retributive focus.

   2. Misguided Public Opinion Fueled an Emphasis on Retribution and Has Driven the Policy for Transfer of Violent Juvenile Offenders

      There is a clear consensus among scholars that public concern, particularly for violent crime, was a major factor contributing to the growing trend of transferring juveniles to the adult court system during the 1990's. (30) Research has shown that the perception by adults of juvenile crime during this period was highly and systematically distorted in favor of over-construing the degree of serious juvenile offenses. (31) Franklin Zimring, a leading scholar in juvenile crime, detects that there is a general sentiment that the youth population has an unusually high share of violent offenders, and consequently there has been a focus on preventing the potential violent crimes of this grown up demographic. (32)

      While there was an increase in violent juvenile crime during the period from 1985-1994, (33) recent trends show that the "rate of juvenile violent crime arrests has consistently decreased since 1994, failing to a level not seen since at least the 1970s." (34) Despite the decrease and plateau of violent crime, the hysteria from the 1985-1994 increase in juvenile crime created the perception of a crime wave. Violent crime among juveniles was one of the most hotly discussed topics in the 1990s. (35) The majority who pushed for harsher policies believed the rehabilitative efforts of the juvenile system had failed. (36) Media coverage of high profile crimes, as well as an overall distortion of seriousness of violent juvenile crimes, only contributed to this negative stigma towards the effectiveness of the juvenile justice system. (37) Consequently, most Americans believed that juveniles should be treated with the same severity as adults, and this in turn led to pressure on legislatures to create laws that provide for transfer to the criminal court system, as well as other procedural mechanisms that treated violent juvenile offenders as adults. (38)

      Such pressure resulted in the passing of the Juvenile Justice and Delinquency Prevention Act of 2002 (hereinafter, Juvenile Act). (39) The Juvenile Act sought to increase the accountability of violent juvenile offenders and even mentioned that penalties imposed by the juvenile system were unsuccessful. (40) The clear purpose of the law was to address violent juvenile offenders in a more punitive manner resembling the adult court system. (41) Many state legislatures had already responded "punitively to the youth violence epidemic of the mid 1980s to mid 1990s, and all but six states...