The back-door to prison: waiver reform, "blended sentencing," and the law of unintended consequences.

• Author: Podkopacz, Marcy R.
• Position: Extended Jurisdiction Juvenile Prosecution - Minnesota

1. INTRODUCTION

   In the late 1980s and early 1990s, the arrest rates of juveniles for violence and homicide surged dramatically. (1) The escalation of homicide, especially among young African-American males in the late 1980s, provided the impetus for legislative strategies to "get tough" and "crack down" on youth crime and accelerated punitive policy trends to "criminalize" juvenile justice. (2) Public fear of youth crime and politicians' desire to "get tough" motivated policies to transfer more young offenders to criminal courts for prosecution as adults and to strengthen the sanctioning powers of juvenile courts. (3) During the early 1990s, most states revised their waiver laws to restrict judges' discretion or to encourage them to transfer more youths to criminal court, to expand prosecutors' authority to transfer youths, or legislatively to remove certain categories of offenses from the jurisdiction of juvenile courts. (4) These various legal trends have resulted in the prosecution of more and younger youths in the criminal justice system.

   In 1995, Minnesota, like many other states, revised its juvenile waiver laws, focused judges' attention primarily on offense-based "public safety" criteria rather than a youth's "amenability to treatment" when they make transfer decisions, and mandated the criminal prosecution of older juveniles charged with first degree murder. (5) Unlike most other states which sought increased criminal prosecutions of youths, Minnesota also expanded the authority of juvenile court judges to impose longer juvenile dispositions and to provide more extensive treatment than previously available to ordinary delinquents. The Minnesota innovation, "Extended Jurisdiction Juvenile Prosecution (EJJ)," allowed judges simultaneously to impose a delinquency disposition and an adult criminal sentence, the execution of which the judge stayed pending successful completion of the delinquency sentence. (6) Several other jurisdictions now employ some type of "blended sentencing" statute which authorizes a judge to impose both a juvenile and criminal sentence.

   This article analyzes the implementation of Minnesota's new EJJ blended sentencing law in Hennepin County (Minneapolis), the largest metropolitan county in the state. First, we describe the legal framework for judicial waiver and EJJ decisions and briefly summarize prior research on waiver practices. Second, we analyze the cases of 504 youths against whom prosecutors filed waiver and EJJ motions between 1995 and 1997 to identify the offender and offense variables that affect prosecutorial charging and judicial sentencing decisions. In our analyses, we compare and contrast the characteristics of the EJJ and certification youths with those of juveniles in an earlier study against whom Hennepin County prosecutors previously filed certification motions to transfer youths to criminal court. (7) Comparing current waiver and EJJ practices with our previous certification study baseline enables us to evaluate how the change in the law affected prosecutorial and judicial policies. The current study also examines the subsequent juvenile court processing, sentencing, and probation revocation experiences of those youths whom prosecutors designated or upon whom judges conferred the intermediate EJJ status. Based on our evaluations of the implementation of the EJJ law, we consider the "net-widening" and policy implications of this blended juvenile and criminal court sentencing option.

2. JUDICIAL WAIVER AND EXTENDED JURISDICTION JUVENILE PROSECUTION

   From the juvenile court's inception, judges could deny some young offenders its protective jurisdiction and transfer them to adult court. (8) Nationally and in Minnesota, the recent escalation in youth violence provoked extensive legislative amendments to transfer more chronological juveniles to criminal courts. States employ several different statutory alternatives to transfer youths: judicial waiver, legislative exclusion of specific offenses, and prosecutorial choice of forum between concurrent jurisdictions.

   Judicial waiver is the most common transfer mechanism and reflects juvenile courts' traditional approach to deciding whether the state should treat a youth as a juvenile or punish him as an adult. Until recent amendments, a juvenile court judge typically waived juvenile court jurisdiction after a hearing to determine whether a youth was "amenable to treatment" or posed a threat to public safety. Judges' case-by-case assessment of a youth's rehabilitative potential and dangerousness reflected the individualized sentencing discretion characteristic of juvenile courts.

   Two United States Supreme Court cases provide the constitutional framework for making these individualized judicial waiver decisions. In Kent v. United States, (9) the Court held that states must provide juveniles with some procedural due process protections in waiver hearings and thereby formalized this special sentencing decision. In Breed v. Jones, (10) the Court applied the Fifth Amendment's double jeopardy provisions to the adjudication of delinquents and required states to decide whether to try a youth in juvenile or criminal court before proceeding on the merits of the charge.

   Although Kent and Breed provide the procedural framework for judicial waiver decisions, the substantive bases for these decisions pose much greater difficulties. Until recent reforms, most jurisdictions allowed juvenile court judges to waive jurisdiction based on an individualized assessment of a youth's "dangerousness" or "amenability to treatment." In practice, judges assess "amenability" and "dangerousness" by focusing on three sets of variables: the offender's age and the amount of time left to treat the youth within juvenile jurisdiction; the youth's treatment prognoses as reflected in clinical evaluations; and the juvenile's threat to others as reflected in the seriousness of the present offense and prior record. Juvenile court judges waive older youths more readily than younger offenders. (11) A youth's age in relation to the juvenile court's maximum dispositional jurisdiction limits the court's dispositional authority and provides the impetus to waive or exclude some older juveniles if the seriousness of the offense deserves a longer sentence than those available in juvenile court. (12) The second set of "amenability" factors include the youth's treatment prognosis based on clinical evaluations and prior correctional experiences. Once a youth exhausts the available juvenile correctional resources, transfer becomes increasingly more likely. (13) Finally, judges assess a youth's "dangerousness" and threat to others based on his or her present offense and prior record. Factors such as the seriousness of the offense, whether the youth used a weapon, and the length of the prior record provide indicators of "dangerousness." (14) Balancing these factors entails a trade-off between offense seriousness and offender persistence.

   Asking a judge to decide a youth's "amenability to treatment" or "dangerousness" implicates many of the most fundamental issues of juvenile jurisprudence. (15) Such laws assume that effective treatment programs exist for at least some serious or chronic young offenders and presuppose that classification systems exist with which to differentiate among youths' treatment potentials or dangerousness. These laws also presume that clinicians or judges possess valid and reliable diagnostic tools with which to determine the appropriate disposition for a particular youth. Evaluation research challenges these legislative assumptions and questions whether programs exist to systematically reduce the risks of recidivism among chronic or violent young offenders and whether judges or clinicians possess the instruments with which to identify which youths will or will not respond to treatment. (16) Statutes that authorize judges to waive a youth who poses a threat to the public require judges to predict "dangerousness" even though clinicians and judges lack the technical capacity reliably to predict serious future criminal behavior. (17)

   Judicial waiver criteria framed in terms of "amenability to treatment" or "dangerousness" give judges broad, standard-less discretion. Lists of substantive factors such as those appended in Kent do not provide adequate guidance. (18) Rather, catalogues of contradictory factors reinforce judges' discretion and allow them selectively to emphasize one element or another to justify any decision. The subjective nature of waiver decisions, the absence of effective guidelines to structure outcomes, and the lack of objective indicators or scientific tools with which to classify youths allows judges to make unequal and disparate rulings without any effective procedural or appellate checks. Empirical analyses provide compelling evidence that judges apply waiver statutes in an arbitrary, capricious, and discriminatory manner. (19) States' waiver rates for similar types of offenders vary extensively. (20) A youth's race also may affect waiver decisions. (21) Even within a single jurisdiction, judges do not administer or apply waiver statutes consistently from county to county or court to court. (22) Research in several states reports a contextual pattern of "justice by geography" in which where youths lived, rather than what they did, determined their juvenile or adult status. (23) Even within a single urban county, judges in the same court decide cases of similarly-situated offenders differently. (24) These differences influence both the characteristics of youths waived and the sentences they received as adults. Differences in judicial philosophies, the location of a waiver hearing, a youth's race, or organizational politics may explain as much about transfer decisions as do a youth's offense or personal characteristics.

   1. WAIVER IN MINNESOTA

      Prior to the 1995 legislative revisions, Minnesota employed a typical judicial waiver...