Dennis the Menace or Billy the Kid: an analysis of the role of transfer to criminal court in juvenile justice.

• Author: Klein, Eric K.

1. INTRODUCTION II. HISTORY AND PURPOSE OF A SEPARATE JUVENILE SYSTEM

   1. The "Child Savers'" Vision of Individualized,

      Treatment-Oriented Juvenile Justice

   2. Constitutional Protections and a Move Toward a Punitive

      System

      1. Kent v. United States

      2. In re Gault

      3. Post-Gault Decisions

      4. The State of Juvenile Court Today

      1. Willie Bosket: The Straw that Broke the Juvenile System

         Back

      2. American Society's Response to Its Willie Boskets:

         Increased Transfer to Criminal Court III. TYPES OF TRANSFER AND RAMIFICATIONS OF EACH

   1. Judicial Waiver

   2. Statutory Exclusion

   3. Prosecutorial Direct File (Prosecutorial Waiver)

      1. Direct File: The Prosecutor's Decision

      2. Other Types of Transfer: The Prosecutor's Decision

   4. Proposed Federal Legislation: Leading States Away from

      Traditional Juvenile Justice IV. WHY TRANSFER is THE WRONG SOLUTION

   1. Consequences of Transfer

      1. Swiftness of Sanctions

      2. Recidivism

      3. Loss of Rehabilitative Opportunities.

      4. Incarceration of Juveniles with Adults

   2. Is Transfer the Answer?: Learning from Developmental

      Psychology

5. CONCLUSION

   "[T]his ... is not about Dennis the Menace. It's Billy the Kid." -- Representative Roy Blunt, Missouri (R)(1)

1. INTRODUCTION

   "Commit an adult crime, do adult time." It's a nice catch phrase. It rhymes and it sounds good in a political speech. Unfortunately, just because something rhymes does not necessarily make it good policy. Across the nation, people are becoming less and less tolerant of juvenile offenders, especially the so-called "serious, chronic, and violent'"(2) juvenile offenders. The media(3) and conservative politicians(4)--and recently "moderate" politicians(5) as well--have scared white middle-America into believing that around every comer lurks a sixteen-year-old black male(6) waiting to commit a crime. An example of this media portrayal of the black, urban teenager is a 1994 Time magazine article which stated, "[I]t's in the inner cities where an interlocking universe of guns, gangs and the drug trade has made mayhem a career path for kids and equipped them with the means to do maximum damage along the way."(7) More and more people are becoming concerned with juvenile crime as what has traditionally been seen as an inner-city problem begins to affect white America. For instance, Senator John Ashcroft stated recently on the Senate floor that part of the problem was the spread of "juvenile gangs ... from "(8) urban to suburban to rural areas.... Further, people believe that this young black male has a long history of involvement with the juvenile justice system and is just looking to harm someone. The solution has become to lock up early the children who have displayed a propensity for crime and keep them locked up for a long time. To achieve this goal, states and the federal government have increasingly turned to the quick-fix solution of trying juveniles as adults. However, as with most quick-fixes, this solution does not achieve its intended goals. Such transfer laws are actually two-edged swords that (1) do not always give harsher and longer sentences to the worst offenders and (2) forever doom other children who could be helped by the juvenile system.(9)

   In recent years, the United States has readily condemned Singapore's caning of a teenager who committed acts of vandalism(10) and signed an international treaty condemning the imprisonment and treatment of juveniles as criminals except as a last resort.(11) Yet, as a nation, we are becoming more and more receptive to the idea of incarcerating a youth with older, more serious criminals for a great portion of his life.

   The fact is that juvenile crime statistics are largely blown out of proportion. However, it is true that over the last ten to fifteen years there has been a disturbing increase in violent juvenile crime.(12) Thus, the issue becomes what is to be done with these juveniles. Historically, Americans have viewed juvenile delinquents as less culpable than adult offenders.(13) Therefore, the juvenile justice system has theoretically focused on the care and rehabilitation of the child rather than on punishment and incapacitation. Over time, the focus of the juvenile justice system has gone from one of individualized treatment and rehabilitation to generalized concerns for public safety and accountability in juvenile offenders. This shift in focus is largely due to a popular view of a juvenile justice system that coddles the young offender. Recently, one politician characterized the juvenile justice system as one that "reprimands the crime victim for being at the wrong place at the wrong time, and then turns around and hugs the juvenile terrorist, whispering ever so softly into his ear, `Don't worry, the State will cure you.'"(14)

   The currently popular method of dealing with violent youth is to try them as adults. This tactic assumes that juveniles tried as adults will receive longer sentences in adult facilities, which, in turn, will act as a greater deterrent and will provide safety to the community. In a 1993 poll, 73% of people interviewed favored trying violent juveniles in adult criminal court rather than in what is perceived as "lenient juvenile courts."(15) In fact, numerous commentators have called for the complete abolition of the juvenile court system.(16)

   As a general rule, juvenile court has original jurisdiction over all criminal acts committed by juveniles.(17) There are three possible methods of transferring a juvenile matter to criminal court, all of which can occur only when authorized or mandated by statute. First, in certain legislatively defined instances, the juvenile court may waive jurisdiction over a case. For purposes of this Note, this type of transfer will be referred to as "judicial waiver." Second, the legislature may mandate that juveniles who fall into certain categories automatically be transferred to criminal court. This will be referred to as "statutory exclusion" or "statutory waiver." Third, a legislature may grant a prosecutor discretion to file a case in either juvenile or criminal court. Usually, a legislature will limit the occasions when a prosecutor may exercise this discretion, but in a few jurisdictions, a prosecutor may file any case involving a juvenile in either court. This method will be referred to as "direct file" or "prosecutorial waiver."(18) In recent years, legislatures across the country have shown an increasing preference for statutory exclusion and direct file. It is clear that legislatures are seeking to remove judicial discretion in and procedural barriers to the transfer of juveniles.

   This Note will argue that the current trend in favor of statutory transfer of juveniles to criminal court and/or increased prosecutorial discretion as to whether a child is tried as an adult is not only reactionary, but fails from a policy standpoint to achieve its intended goals. Part II of this Note will look at the history and purposes of the separate American juvenile justice system and its progression from the avuncular system envisioned by its creators to the punitive, "just deserts" system with an emphasis on juvenile transfer that exists today. Part III will then analyze the different types of transfer, the arguments for and against each, and the trend today away from judicial waiver as exemplified by two recent federal bills. Part IV will then discuss policy concerns raised by the recent trend in favor of transferring more juveniles to criminal court. Interspersed with theoretical and policy arguments, I will try to offer some first-hand experiences with children in the juvenile system who were, or are, potential candidates for transfer to criminal court.(19)

2. HISTORY AND PURPOSE OF A SEPARATE JUVENILE SYSTEM

   1. The "Child Savers'" Vision of Individualized, Treatment-Oriented Juvenile Justice

      Special treatment for juveniles accused of crime is not something unique to twentieth century America. In fact, special treatment of juvenile delinquency can be traced back to the seventeenth century, when it arose as a result of economic and political conditions that accompanied the establishment of capitalist societies.(20) However, it was not until the close of the nineteenth century that an attempt was made to organize different reforms aimed at juvenile offenders into a coherent system of juvenile justice.(21) These reforms stemmed from a belief that children should not be held to the same level of accountability as adults because they were not fully responsible for their actions.(22) Under late nineteenth century common law, juveniles were treated differently from adults. Under the common law, there existed the infancy defense.(24) Children under the age of seven were presumed to lack the requisite mens rea to commit a criminal offense.(25) For children between the ages of seven and fourteen there existed a rebuttable presumption of criminal incapacity,(26) while those over fourteen were treated as fully responsible for their conduct and treated as adults.(27)

      The Progressives in the late nineteenth century pushed for reform everywhere in the criminal justice system. The Progressives looked to move away from the punitive and toward a rehabilitative ideal, especially with regard to the correction of delinquent children and adolescents.(28) A specific group of Progressives, the "child savers," focused their attention on discovering and remedying the causes of juvenile delinquent behavior.(29) The child savers viewed juvenile offenders as a group in need of care and guidance, not punishment. In In re Gault,(30) Justice Fortas summed up the views of the child savers:

      The early reformers were appalled by adult procedures and penalties, and by

      the fact that children could be given long prison sentences and mixed in

      jails with hardened criminals. They were profoundly convinced that

      society's duty to the child could not be confined by the concept of

      justice alone. They believed that society's role was not to ascertain

      whether the child was...