The Power Politics of Juvenile Court Transfer: A Mildly Revisionist History of the 1990s

AuthorFranklin E. Zimring
PositionWilliam G. Simon Professor of Law and Wolfen Distinguished Scholar, University of California, Berkeley School of Law.
Pages1-15
The Power Politics of Juvenile Court Transfer: A
Mildly Revisionist History of the 1990s
Franklin E. Zimring
The boundary between the juvenile court‘s delinquency
jurisdiction and the adult criminal process should be an obvious
fault line in courts, academics, and state legislatures. What are and
what should be the differences in emphasis between a court for
seventeen-year-old burglars and a court that claims jurisdiction
over those with identical charges but earlier dates of birth?
1
The
discussion of what justifies separate treatment for adolescent
offenders should be an important and jurisprudentially thick
discourse, but it is not.
Regardless of the general age boundaries imposed by state
legislation between juvenile and criminal court, special
proceedings are available to transfer youth under the usual age
threshold from juvenile to criminal court.
2
Even if general rules
such as maximum jurisdictional age are rarely influenced by
extensive analysis, surely these exceptional cases where a youth
might be removed from juvenile court present the sort of high-
stakes individual dramas that provoke deep thought and require
resort to the basics of legal philosophy, to a search for
fundamentals. Standards for transfer should inspire detailed
legislative debate about the purposes and limits of juvenile courts.
Judicial decisions about waiver from juvenile to criminal court
should be thoughtful, meticulous, and impartial. Appellate review
of judicial-waiver decisions should be one of the major intellectual
challenges of a state appeals court career. Transfer, however, is a
jurisprudential wasteland. The gap between theory and practice in
transfer decision-making is huge at every branch of state
government, and the poverty of judicial performance in waiver
decisions and appeals is a particular disappointment. Why? What is
there about the jurisprudential issues raised by waiver that
produces legislative and judicial underperformance?
Part of the problem was a disingenuous theory of waiver in the
original juvenile court, which has been exacerbated by political
debates where transfer policy is generally a crude surrogate for
Copyright 2010, by FRANKLIN E. ZIMRING.
William G. Simon P rofessor of Law and Wolfen Distinguished Scholar,
University of California, Berkeley School of Law.
1
. FRANKLIN E. ZIMRING, AMERICAN YOUTH VIOLENCE 6987 (1998).
2
. See David S. Tanenhaus, The Evolution of Transfer Out of Juvenile
Court, in THE CHANGING BORDERS OF JUVENILE JUSTICE 13 (Jeffrey Fagan &
Franklin E. Zimring eds., 2000).

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