Race, recidivism, and prosecutorial discretion in juvenile transfer cases in Virginia

• Pages: 39-74
• Date: 01 January 2025
• Published date: 01 January 2025
• Author: Lane Mullin

Race, Recidivism, and Prosecutorial Discretion in

Juvenile Transfer Cases in Virginia

LANE MULLIN*

ABSTRACT

Juvenile transfer laws—laws allowing the transfer of juvenile offenders from

juvenile to adult criminal courts—were established during the “tough on crime”

era amidst fears of juvenile “superpredators” with the purported goal of improv-

ing public safety by reducing recidivism rates. However, the practice of juvenile

transfer has been shown to not only increase, rather than decrease, recidivism

rates, but also to result in a disproportionate number of children of color being

placed in adult carceral institutions. This article examines juvenile transfer

practices in Virginia in light of recent amendments to relevant laws seeking

to address these problems. In Virginia, like many other jurisdictions, trans-

ferred juvenile defendants tend to remain in the criminal justice system longer

and have higher recidivism rates. Moreover, Black children have been trans-

ferred to adult criminal courts and carceral facilities at disproportionately

high rates in the state. 2020 amendments to Virginia’s juvenile transfer laws

were intended to address these issues and racial disparities, most notably by

increasing the minimum age a juvenile could be tried as an adult from fourteen

to sixteen and thereby reducing the zone of discretionary decision-making among

prosecutors and judges. Through an examination of the history of juvenile trans-

fer laws in Virginia, current juvenile transfer processes, and the problems such

processes pose, this article argues that recent amendments to laws governing

Virginia’s juvenile transfer process do not go far enough to protect children,

especially children of color. More specifically, it argues that these amendments

continue to provide prosecutors with excessive discretion in determining which

children to prosecute as adults. Among other things, this continuing high degree

of discretion risks perpetuating the racially disproportionate nature of Virginia’s

juvenile transfer system to the detriment of children of color, especially Black

children. While abolition of juvenile transfer laws represents the most direct way

of dealing with these issues, it is unlikely that there will be necessary political

support to abolish all juvenile transfers in the near-term. In light of these real-

ities, this article identifies additional changes that could improve Virginia’s

juvenile criminal justice practices in the near term.

* J.D., May 2024, University of Hawai‘i at Ma¯noa, William S. Richardson School of Law. Thank you to

Professors Randle DeFalco and Cory Lenz for their comments, suggestions, and research guidance. © 2025,

Lane Mullin.

39

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

I. HISTORY OF JUVENILE TRANSFER LAWS IN THE U.S. AND

VIRGINIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

A. HISTORY OF JUVENILE COURTS AND TRANSFER . . . . . . . 44

B. JUVENILE TRANSFER DURING THE “TOUGH ON CRIME”

ERA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

1. THE RISE OF THE CHILD “SUPERPREDATOR” MYTH . . . . . . . . . . 45

2. THE SHIFT TO OFFENSE-BASED, PROSECUTORIAL DISCRETION . 46

3. “TOUGH ON CRIME” ERA REFORMS IN VIRGINIA ............ 47

4. IMPLICATIONS OF “TOUGH ON CRIME” ERA REFORMS IN

VIRGINIA .......................................... 50

II. JUVENILE TRANSFER IN VIRGINIA IN THE “CHILDREN ARE

DIFFERENT” ERA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

A. CURRENT PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

1. GENERAL TRANSFER ................................. 52

2. MANDATORY CERTIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

3. PROSECUTORIAL DISCRETION . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

4. DIRECT INDICTMENT ................................. 54

5. SELF-WAIVER ...................................... 54

B. 2020 LEGISLATIVE REFORMS . . . . . . . . . . . . . . . . . . . . . . 54

III. CONTINUING POST-REFORM PROBLEMS WITH JUVENILE

TRANSFER PROCESSES IN VIRGINIA . . . . . . . . . . . . . . . . . . . . . 55

A. EXCESSIVE PROSECUTORIAL DISCRETION . . . . . . . . . . . . 56

B. PROBLEMS WITH JUDICIAL DISCRETION . . . . . . . . . . . . . 57

C. JUVENILE TRANSFER INCREASES RECIDIVISM . . . . . . . . 60

1. JUVENILE TRANSFER DOES NOT DETER ................... 60

2. JUVENILE TRANSFER INCREASES RECIDIVISM . . . . . . . . . . . . . . . 60

40 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 38:39

D. JUVENILE TRANSFER DISPROPORTIONATELY IMPACTS

BLACK CHILDREN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

IV. POLICY RECOMMENDATIONS FOR JUVENILE TRANSFER IN

VIRGINIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

A. INCREASE DIVERSION PROGRAMS . . . . . . . . . . . . . . . . . . 67

B. ABOLISH UNCHECKED PROSECUTORIAL DISCRETION . . . 68

1. ABOLISH DIRECT FILE ................. ............... 69

2. ABOLISH MANDATORY CERTIFICATION ............... .... 69

3. ALLOW REVERSE WAIVERS FOR ALL TRANSFER DECISIONS . . . 71

C. INCREASE DJJ OVERSIGHT . . . . . . . . . . . . . . . . . . . . . . . . 71

D. EDUCATE PLAYERS IN THE JUVENILE TRANSFER

PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

INTRODUCTION

Like most states, Virginia has a set of laws through which children can be tried

as adults in certain circumstances.

1

See VA. CODE ANN. § 16.1-269.1 (2024), https://law.lis.virginia.gov/vacode/title16.1/chapter11/

section16.1-269.1/ [https://perma.cc/68VH-AZX2].

These laws, referred to as juvenile transfer

laws, permit a person under eighteen to be tried as an adult.

2

Both generally and

in Virginia, these laws engendered significant controversy because of the dangers

of placing children in adult prisons,

3

impacts on a transferred juvenile’s ability to

successfully re-enter society,

4

and the racially disproportionate impact these laws

have, especially on Black

5

Per guidance from the National Association of Black Journalists, this Article capitalizes the words

“Black” and “White” in reference to descriptions of race. NABJ Style Guide, NAT’L ASS’N OF BLACK

JOURNALISTS, https://nabjonline.org/news-media-center/styleguide/#styleguidea [https://perma.cc/7D2J-FRCX]

(last visited Oct. 4, 2024).

children.

6

Partially in response to these issues,

Virginia revised its juvenile transfer system in 2020.

7

This Article argues that the

2020 Virginia reforms do not go far enough. Even after these reforms, there are

five methods through which a child can be tried as an adult in Virginia.

8

This

1.

2. See id.

3. See infra section III.C.iii.

4. See infra section III.C.ii.

5.

6. See infra section III.D.

7. See, e.g., Julie E. McConnell, Unshackled: Stories of Redemption Among Serious Youthful Offenders, 25

RICH. PUB. INT. L. REV. 67, 97 (2022) (“In recognition of the clear evidence that children are highly likely to

turn their lives around once their brains fully develop, the Virginia General Assembly has changed how we treat

adolescents in the juvenile legal system.”).

8. See infra section II.A.

2025] RACE, RECIDIVISM, AND PROSECUTORIAL DISCRETION 41