Missed Opportunity: Waiver, Race, Data and Policy Reform

• Author: Mark Soler
• Position: Executive Director, Center for Children?s Law and Policy, Washington, D.C.
• Pages: 17-33

Missed Opportunity: Waiver, Race, Data, and Policy

Reform

Mark Soler

The decision to prosecute a juvenile in adult criminal court—to

―transfer‖ jurisdiction from juvenile to adult court, or to ―waive‖

the jurisdiction of the juvenile court

1

—is a key decision point in

the juvenile justice system.

2

For decades, researchers have

documented racial disparities at key decision points in the system,

including at waiver.

3

The research literature on waiver is

Copyright 2010, by MARK SOLER.

 Executive Director, Center for Children‘s Law and P olicy, Washington,

D.C. The Center for Children‘s Law and P olicy is a nonprofit public interest la w

and policy organization focused on r eform of juvenile justice and related

systems that affect troubled and at-risk children and pro tection of the rights of

children in those systems.

1

. In this Article, the terms ―transfer‖ and ―waiver‖ ar e used

interchangeably to mean the decision to prosecute a juvenile in adult criminal

court, whether the decision is made by a judge after a hearing, by a prosecutor

pursuant to discretio n granted by statute, or by the legislature in designating

certain offenses for which youth are automatically charged in adult court.

2

. HOWARD N. SNYDER & MELISSA SICKMUND, JUVENILE OFFENDERS AND

VICTIMS: 2006 NATIONAL REPORT 190 (2006), a vaila ble at http://www.ojjdp.

ncjrs.gov/ojstatbb/nr2006/downloads/NR2006.pdf.

In Louisiana, any child at least 15 years of age who has been indicted for first or

second degree murder, aggravated rape, o r aggravated kidnapping is

automatically prosecuted in adult criminal court. LA. CHILD. CODE ANN. art.

305(A)(i)(a) (Supp. 2010). Any c hild 15 or older who is ac cused of such crimes,

but not indicted, is prosecuted in juvenile court, though there may be a transfer

hearing at which the judge may transfer the case to adult court. Id. art.

305(A)(i)(b). The j uvenile court has jurisdiction over any child at least 14 years

old who is accused of certain other crimes, such as attempted first degree

murder, armed robbery, forcible rape, or distribution or possession with intent to

distribute controlled or dangerous substances. Id. art. 8 57(A)(1)–(8). At the

discretion of the prosecutor or the juvenile court judge, a transfer hearing may

be held at which the juvenile may be transferred to adult court, based on whether

there i s probable cause to believe that the juvenile committed the offense and

―there is no substantial opportunity for the child ‘s rehabilitation through

facilities available to the court.‖ Id. art. 862(A)(1)–(2) (2004) . The existence of

opportunity for rehabilitation is based upon t he child‘s age, maturity, and

sophistication; the nature and seriousness of the alleged offense; the child ‘s prior

acts of delinquency; the child‘s response to p ast efforts at rehabilitation; whether

physical or mental problems contributed to the c hild‘s alleged crime; a nd the

appropriateness of the remedies available to the juvenile court. Id. art.

862(A)(2)(a)–(f).

3

. BARRY KRISBERG & JAMES F. AUSTIN, REINVENTING JUVENILE JUSTICE

112–34 (1993); NAT‘L COAL. OF STATE JUVENILE JUSTICE ADVISORY GRPS., A

DELICATE BALANCE (198 9); NAT‘L COUNCIL ON CRIME & DELINQUENCY, AND

JUSTICE FOR SOME: DIFFERENTIAL TREATMENT OF YOUTH OF COLOR IN THE

18 LOUISIANA LAW REVIEW [Vol. 71

particularly rich and includes information on racial differences.

4

However, with one notable exception,

5

states have not used such

information to guide policy decisions in order to reduce racial

disparities.

This is important because, in recent years, many jurisdictions

around the country have begun to use careful data collection and

analysis at pre-adjudication decision points in the juvenile justice

system. These developments have led to policy and practice

changes that have significantly reduced racial and ethnic disparities

involving youth of color.

6

However, no jurisdiction has yet

undertaken such an effort with respect to data on waiver.

This failure to gather and analyze waiver data at the local and

state levels and use it to guide policy reform is a missed

opportunity. Youth of color are disproportionately subject to

waiver policies.

7

For example, black youth are 40% more likely to

be waived to adult criminal court for a drug offense than white

youth,

8

and waiver carries serious negative consequences,

including incarceration in adult jails.

9

This Article examines the major research on waiver and

discusses what it reflects about racial differences. This Article then

describes data collection and analysis at pre-adjudication decision

points in the juvenile justice system in multiple jurisdictions and

considers how this data substantially reduces racial and ethnic

disparities. Finally, this Article suggests new collection and

analysis of data that would enable jurisdictions to change waiver

policies and practices and to reduce racial and ethnic disparities

among youth.

JUSTICE SYSTEM (2007), a va ilable at http://www.nccd-crc.org/nccd/pubs/2007

jan_justice_for_some.pdf; Carl E. Pope & William H. Feyerherm, Minority

Status and Juvenile J ustice P rocessing: An Assessmen t of the Resear ch

Literature (Part I), 22 CRIM. JUST. ABSTRACTS 327–35 (1990); Carl E. Pope &

William H. Feyerherm, Minority Status and Juvenile Justice Processing: An

Assessment of the Resea rch Literature (Par t II ), 22 CRIM. JUST. ABSTRACTS

527–35 (1990).

4

. See infra Part I.

5

. The exception is Illinois. See infra note 30 and accompanying text.

6

. See infra Part II.

7

. NEELUM ARYA & IAN AUGARTEN, CAMPAIGN FOR YOUTH JUSTICE,

CRITICAL CONDITION: AFRICAN-AMERICAN YOUTH IN THE CRIMINAL JUSTICE

SYSTEM 26 (2008) (citing JOLANTA JUSZKIEWICZ, CAMPAIGN FOR YOUTH

JUSTICE, TO PUNISH A FEW: TOO MANY YOUTH CAU GHT IN THE NET OF ADULT

PROSECUTION ( 2007)), availa ble at http://www.campaignforyouthjustice.org/

documents/AfricanAmericanBrief.pdf.

8

. Id. at 19.

9

. Id. at 28.