The end of the line: an empirical study of judicial waiver.

AuthorPodkopacz, Marcy Rasmussen

    When young offenders commit serious or violent offenses, should the justice system respond on the basis of "just deserts" or on the "real needs" of the offender? Waiver decisions--affecting the most serious or persistent juvenile offenders--require a sentencing policy choice between punishment in adult criminal court or rehabilitation in juvenile court.(1) If one adopts a criminal court's point of view, the emphasis on punishment prevails, and the seriousness of the present offense or one's prior record controls the decision to transfer adolescents from juvenile to adult court. When offense considerations dominate, transfer decisions lend themselves to relatively mechanical decisional rules or presumptive sentencing guidelines. Alternatively, if one adopts a juvenile court's point of view, the emphasis on rehabilitation predominates, and individualized assessments of an offender's "amenability to treatment," "dangerousness," and future welfare control the sentencing decision. When offender characteristics are paramount, courts require more open-ended, indeterminate, and discretionary processes.(2)

    The recent increase in youth violence has provoked legislative reactions to "get tough" or to find the "right" solution. Every state has adopted one or more statutory strategy to transfer some chronological juveniles to criminal courts. The alternatives include: (1) judicial waiver of juvenile court jurisdiction; (2) legislative exclusion of specific offenses from jurisdiction in juvenile court;(3) and (3) prosecutorial choice of forum between concurrent jurisdictions in deciding whether a youth is a criminal or a delinquent.(4)

    Judicial waiver is the most common waiver mechanism across the nation.(5) A juvenile court judge may waive juvenile court jurisdiction on a discretionary basis after a hearing to determine whether a youth is "amenable to treatment" or poses a threat to public safety. A judge's case-by-case clinical assessment of a youth's rehabilitative potential and dangerousness reflects the individualized sentencing discretion characteristic of juvenile courts.(6)

    Proponents of judicial waiver emphasize its consistency with juvenile court sentencing philosophy and contend that individualized judgments provide an appropriate balance of flexibility and severity.(7) By contrast, critics argue that juvenile courts lack valid or reliable clinical tools with which to assess amenability to treatment or to predict dangerousness, and that the standardless discretion courts exercise results in abuses and inequalities.(8)

    As the public debate about serious and violent delinquents intensifies, legislatures increasingly exclude certain combinations of present offense and prior record from juvenile court jurisdiction or emphasize offense criteria to structure judicial discretion in waiver hearings.(9) Despite these legislative modifications of the most consequential sentencing decisions juvenile courts make, there is remarkably little research on the determinants of waiver, the sentences that young offenders received in juvenile or criminal courts, or their subsequent criminal careers.(10)

    This Article addresses this paucity with an analysis of judicial waiver policy and processes in Hennepin County (Minneapolis), the largest metropolitan county in Minnesota. First, we discuss the legal framework for judicial waiver decisions and describe prior research on waiver practices. Second, we explore significant determinants of the waiver decision, analyzing 330 transfer motions filed between 1986 and 1992 to identify the offender and offense variables that affect judicial waiver decisions. In our analysis we include indicators of the judicial waiver process, including: the timing of the process, the role of clinical assessments, and the ways in which individual judges affect transfer decisions. Finally, we examine the subsequent juvenile or criminal court processing, sentencing, and recidivism of youths against whom prosecutors filed waiver motions.


    Two United States Supreme Court cases provide the constitutional framework for making the individualized sentencing decisions involved in judicial waiver hearings. In Kent v. United States,(11) the Court held that states must provide juveniles with some procedural due process protections in judicial waiver hearings, thereby "formalizing" this special sentencing decision.(12) In Breed v. Jones,(13) the Court applied the double jeopardy provisions of the Constitution to the adjudication of juvenile offenses and required states to decide whether to try a youth in juvenile or criminal court before proceeding on the merits of the charge.(14)

    Although Kent and Breed provide the procedural framework for judicial waiver decisions, the substantive bases for these decisions pose much greater difficulties. Most jurisdictions allow juvenile court judges to waive jurisdiction based on assessments of a youth's dangerousness or amenability to treatment. These discretionary decisions focus on the offender's age, the amount of time left for treatment within juvenile jurisdiction, treatment prognosis as reflected in clinical evaluations, and threat to others as reflected in the seriousness of the present offense and prior record.(15)

    Asking the court to decide whether a youth is dangerous or amenable to treatment implicates some of the most difficult issues of sentencing policy and juvenile jurisprudence. The underlying legislative assumptions--that effective treatment programs exist for serious or persistent juvenile offenders, that classification systems can differentiate the treatment potential or dangerousness of various youth, and that validated and reliable diagnostic tools enable a clinician or juvenile court to determine the proper disposition for a particular youth--are all highly problematic and controversial.(16) Alternatively, waiving juvenile court jurisdiction because a youth poses a threat to public safety assumes that courts reliably and accurately can predict future dangerousness.(17)

    Juvenile courts exercise broad, standardless discretion when making waiver decisions on the basis of statutory criteria such as amenability to treatment or dangerousness.(18) Adding long lists of amorphous and contradictory substantive factors, such as the standards appended in Kent, reinforces rather than constrains judicial discretion because courts can justify any decision by selectively emphasizing one set of attributes over another.(19)

    The subjective nature of waiver decisions allows unequal application of the law to similarly situated youths without any effective check. Juvenile courts cannot administer these discretionary statutes on a consistent, even-handed basis.(20) Hamparian's nationwide analysis of waiver in 1978 provides compelling evidence that judicial waiver practices are inherently arbitrary, capricious, and discriminatory.(21) In addition, a juvenile's race may also influence the waiver decision.(22) Furthermore, Jeffrey Fagan reports that the length of time from age at offense to the jurisdictional age limit, rather than the offender's prior record, strongly influences judicial transfer decisions; courts transfer juveniles where the seriousness of the offense requires a longer sentence than is available in the juvenile court.(23)

    A second problem posed by discretionary waiver is the inconsistency between the criteria used to make transfer decisions and the criteria used by criminal courts to impose prison sentences. Despite public concerns in many jurisdictions about youth violence, most youths judicially waived to criminal court are chronic property offenders rather than violent offenders.(24) When criminal courts sentence recidivist property offenders who appear as adult first-offenders, these youths often receive shorter sentences as adults than they could have received in juvenile court.(25) This lack of integration between juvenile court waiver and criminal court sentencing practices gives rise to a "punishment gap" when chronic young offenders make the transition from one system to the other.


      Minnesota's judicial waiver statutes, criteria, and procedures typify the way most states decide to prosecute some chronological juveniles in criminal courts. Subject to the constitutional constraints of Kent and Breed, Minnesota's statute and Juvenile Court Rule 32(26) govern the process of waiving juvenile court jurisdiction and prosecuting a young offender as an adult. The county attorney initiates a reference proceeding by filing a motion for adult prosecution.(27) Following a finding of probable cause, the juvenile court may order a social study of the child(28) and within thirty days of filing the motion must conduct a hearing to determine whether the youth meets the waiver criteria.(29) The juvenile court may grant adult reference if it concludes that the child is "not suitable for treatment" or that "public safety is not served" by retaining the youth in juvenile court.(30)

      Prior to 1980, Minnesota's waiver law provided minimal guidance for juvenile courts trying to decide whether to certify a youth for criminal prosecution. In In re Dahl,(31) the Minnesota Supreme Court confronted some of the procedural and substantive problems in the juvenile waiver process.(32) The court clearly indicated to the legislature that the waiver criteria needed modification and greater specificity,(33) concluding that "re-evaluation of the existing certification process may be in order."(34)

      In 1980, the Minnesota legislature amended the certification process.(35)

      The revised juvenile code retained, unchanged, the basic waiver criteria of nonamenability to treatment or dangerousness,(36) and placed the burden of proof on the prosecution to establish by "clear and convincing evidence" that juvenile court jurisdiction should be waived.(37) However, the legislature added a third subdivision to the certification statute(38)...

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