Clinicians’ Transfer Evaluations: How Well Can
They Assist Judicial Discretion?
From its earliest years, the juvenile court exercised options for
trying some cases involving youth in criminal court. The primary
legal basis for transferring
youth from juvenile to criminal court
was by the discretion of juvenile court judges.
Kent v. U.S.
outlined due-process requirements for discretionary (judicial)
transfer as well as certain criteria to guide courts‘ judgments in
deciding whether to transfer on a case-by-case basis.
Beginning in the late 1980s, a majority of states created laws
that increased the use of statutory exclusion of juveniles from
―automatic‖ filings of charges in criminal court by employing
certain restrictions regarding age of the juvenile and nature of the
Many states, however, retained the option of judicial
transfer for cases that did not meet the criteria for statutory
In addition, in many states, cases involving youth that
were filed in criminal court could be remanded to juvenile court by
discretion of the criminal court judge, a process sometimes called
Whether in juvenile court transfer proceedings or criminal
court ―reverse transfer‖ proceedings, courts‘ judgments about
whether individual youth ought to be transferred are often
informed by forensic clinical evaluations performed by mental
health professionals. The legal criteria applied in a transfer case
refer in part to characteristics of youth that the court must consider
when determining whether the youth is a proper subject for
Copyright 2010, by THOMAS GRISSO.
Thomas Grisso, Ph.D., is Professor of Psychiatry (Clinical P sychology),
Director of the Law and Psychiatry Pro gram, and Director of Psychology at the
University of Massachusetts Medical School, Worcester, MA.
. The term for transferring youth from juvenile to criminal or criminal to
juvenile jurisdiction varies fro m state to state. Common variations are
―certification,‖ ―waiver,‖ ―bindover,‖ and, as emplo yed in this Article,
. David S. Tanenhaus, The Evolution of Transfer Out of the Juvenile
Court, in THE CHANGING BORDERS OF JUVENILE JUSTICE 13 (Jeffrey Fagan &
Franklin E. Zimring eds., 2000).
. 383 U.S. 541 (1966).
. Robert O. Dawson, Judicia l Waiver in Theory a nd Practice, in THE
CHANGING BORDERS OF JUVENILE JUSTICE, supra note 2, at 45.
. Id. at 64.
. Barry C. Feld, Legislative Exclusion of Offenses from Juvenile Court
Jurisdiction: A History and Critique, in THE CHANGING BORDERS OF JUVENILE
JUSTICE, supra note 2, at 83 , 119–24.