An Open Door to the Criminal Courts: Analyzing the Evolution of Louisiana?s System for Juvenile Waiver

• Author: Hector Linares - Derwyn Bunton
• Position: Adjunct Professor, Juvenile Defense Clinic, LSU Paul M. Hebert Law Center; B.A. Tulane University, 2000 - Chief Public Defender for the Parish of Orleans; B.A. San Diego State University, 1995; J.D. New York University School of Law, 1998.
• Pages: 191-230

An Open Door to the Criminal Courts: Analyzing the

Evolution of Louisiana’s System for Juvenile Waiver

Hector Linares

Derwyn Bunton**

INTRODUCTION

Wayne is a 15-year-old black male from southeastern

Louisiana who has just been waived to adult court, convicted of

armed robbery with a firearm and given the mandatory minimum

sentence of 15 years of incarceration without the possibility of

parole as punishment for his crime. Many may find a 15-year

sentence perfectly reasonable for such a serious violent felony

regardless of the offender‘s youth. Would opinions change,

however, if it were discovered Wayne was not the hardened

―superpredator‖

1

many might assume him to be? Suppose Wayne

never received any treatment for a dual diagnosis of mild mental

retardation and bipolar disorder, functions at a third-grade level in

both reading and math, and had no trouble with the law prior to

this incident. Furthermore, his role in the crime was that of a

lookout who never left the car while the two adult codefendants—

who pressured Wayne into participating in the crime—carried out

the robbery inside the store. None of these facts were presented to

a juvenile judge prior to Wayne‘s transfer because the district

attorney waived Wayne to adult court by indictment before he

could even meet with his assigned juvenile defender. Even if

Wayne had consulted with counsel prior to transfer, the juvenile

defender could have done little to prevent the waiver. This is

particularly true if Wayne‘s law yer could not prove Wayne

Copyright 2010, by HECTOR LINARES & DERWYN BUNTON.

 Adjunct Professor, Juvenile Defense Clinic, LSU Paul M. Hebert Law

Center; B.A. Tulane University, 2000; J.D. New York University School of

Law, 2003. The authors gratefully acknowledge the invaluable assistance and

encouragement of Lucy McGo ugh, Kristin Henning, Anjum Gupta, Monique

Haughton Worrell, and Benjie Louis.

** Chief Public Defender for the Parish of Orleans; B.A. San Diego State

University, 1995; J.D. New York University School of Law, 1998.

1

. The term ―superpredator‖ refers to a since-debunked stereotype created

by the national media in the 1990s that still persists to this day and portrays

youthful offenders as violent, unfeeling, fledgling career criminals without any

prospect for rehabilitation. See Elizabeth Becker, As Ex-Theorist on Young

“Superpredators,” Bush Aide Has Regrets, N.Y. TIMES, Feb. 9, 2001, at A19.

192 LOUISIANA LAW REVIEW [Vol. 71

incompetent because he does not meet the high legal standard

required for establishing mental incapacity to proceed.

Now, instead of being placed in a juvenile prison to receive

special education services, vocational training, and intensive

medical and mental health treatment until the age of 21, Wayne

will spend the next half of his life in a punitive adult prison where,

for at least the first few years, he will be a target because of his

size, youth, and disability.

2

Wayne will most likely emerge from

prison without job skills or an education but with new criminal

know-how and an untreated and aggravated severe mental illness.

These and a number of other considerations are relevant not only

to the degree of empathy Wayne‘s predicament might elicit from

the average person, but also to his culpability, his amenability to

rehabilitation, and the likelihood his incarceration as an adult will

make society safer down the road and otherwise be a wise use of

public funds. Yet none of these revelations are legally relevant to

the process that resulted in Wayne‘s transfer, conviction, and

sentence, not because there was some sort of break down in the

system, but quite to the contrary: because the transfer system in

this case worked exactly as it was designed by the Louisiana

Legislature.

Wayne‘s case is just one example of how Louisiana‘s current

system for waiving juveniles to adult courts of criminal jurisdiction

can, and often does, result in harsh and irreversible outcomes

detrimental to both the youth involved and, in the long run,

society.

3

In Louisiana, an increasingly rigid set of rules related to

waiver and sentencing—which ignore what is known about

adolescent development—intersects with a lack of procedural

safeguards and judicial discretion, resulting in the unnecessary

transfer of youth amenable to rehabilitation in a manner that

neither promotes public safety nor is fiscally sound. Part I of this

Article will examine both the history and the current structure of

Louisiana‘s system for trying youth as adults, focusing on

understanding the rationale used in bringing about the current

system. Part II of this Article will provide an analysis of some

particularly troubling individual components of the waiver system

2

. See CAMPAIGN FOR YOUTH JUSTICE, JAILING JUVENILES: THE DANGERS

OF INCARCERATING YOUTH IN ADULT JAILS IN AMERICA (2007), available at

http://www.campaignforyouthjustice.org/Downloads/NationalReportsArticles/

CFYJ-Jailing_Juveniles_Report_2007-11-15.pdf.

3

. Wayne‘s ac count is a theoretical example based on a conglomerate of

actual cases with which the authors are familiar. For similar stories of transfer

involving real cases from Louisiana, see Juvenile Justice Project of La., The

Children of Tra nsfer, JUV. JUST. PROJECT LA. (July 19, 2010), http://jjpl.org/

new/index.php?s=the+children+of+transfer.

2010] AN OPEN DOOR TO THE CRIMINAL COURTS 193

and how they interact to result in the transfer to adult court of

youth who would be better served by the more rehabilitative

juvenile justice system. More specifically, this Section will

examine how mandatory sentencing, the law of principals, and

expansive waiver provisions interact with the absence of

procedural safeguards such as reverse waiver, competency

protections, and standards which take into account our evolving

understanding of adolescent development to result in the wasteful

use of public resources on a system which harms youth who could

be rehabilitated without increasing public safety or advancing other

stated penological purposes. Part III provides recommendations

and analyses of potential remedies for the failures in Louisiana‘s

current transfer system and an examination of how those remedies

have operated in other jurisdictions to minimize the unnecessary

use of transfer. The Article concludes that the only way to provide

the due process protections and individualized determinations

necessary to ensure only youth unamenable to rehabilitation are

waived to adult court is through the total elimination of legislative

and prosecutorial waiver in favor of an exclusive reliance on

judicial waiver. Recognizing the extremely unlikely prospects for

such a sweeping change, however, this Article suggests a number

of other less comprehensive recommendations that could be more

feasibly implemented in the current political climate and still

mitigate some of the most dire effects of the current system.

I. THE HISTORY AND DEVELOPMENT OF LOUISIANA‘S CURRENT

WAIVER SYSTEM

A. Louisiana’s Current Waiver System

In Louisiana, 17 is the age of criminal jurisdiction, meaning

anyone accused of committing a criminal offense at an earlier age

is generally tried as a juvenile in the state‘s delinquency system.

4

However, the Louisiana Constitution grants the state legislature the

authority to establish a statutory framework for waiving youth to

adult court for certain enumerated offenses.

5

The Louisiana

4

. LA. CONST. art. V, § 19.

5

. Id. Article V, section 19 provides, in pertinent part:

[T]he legislature may (1) b y a two-thirds vote of the elected members

of each house provide that special j uvenile procedures shall not apply

to juveniles arrested for having committed first or second degree

murder, manslaughter, aggravated rape, armed robbery, aggravated

burglary, aggravated kidnapping, attempted first degree murder,

attempted second degree murder, forcible rape, simple rape, second

degree kidnapping, a second or subsequent aggravated battery, a second