Assessing the relative effects of state direct file waiver laws on violent juvenile crime: deterrence or irrelevance?

• Author: Steiner, Benjamin

1. INTRODUCTION

   A separate and distinct juvenile justice system was founded on the Progressive Era belief that juvenile offenders were merely delinquent and in need of individualized treatment wherein the ultimate goal was their rehabilitation. (1) During the 1970s and throughout the 1980s, however, the rehabilitative ideal that had guided both the adult and juvenile justice systems came under attack. (2) Conservatives argued that rehabilitation programs had failed and suggested that the crime rate was rising because offenders had no reason to fear incapacitation; in short, conservatives felt that the current system did not deter future crime. (3) Their position was not unfounded. Juvenile violence began to rise in the 1970s and escalated substantially in the 1980s. (4) The juvenile arrest rate for violent crime rose 62% between 1988 and 1994 and the juvenile homicide rate doubled between 1987 and 1993. (5) At the same time conservatives were claiming the system was soft on crime, liberals questioned the philosophy of rehabilitation, judges' potential biases and broad discretionary powers, and the ability of corrections officials to determine when an offender was truly "rehabilitated." (6) In response to the pervasive discretion in both the adult and juvenile systems, the United States Supreme Court embarked on a due process campaign that extended to the juvenile justice system and essentially criminalized the traditionally informal juvenile court by affording juveniles many of the same procedural rights guaranteed adult defendants. (7)

   The juxtaposition of the widespread rejection of the rehabilitative ideal, the rise in violent juvenile crime, and the due process movement in the Supreme Court altered the juvenile justice system from an informal, highly offender-oriented criminal justice system to a much more formal, victim-oriented, "just deserts" style of system. (8) Simply put, the focus shifted from the offender to the offense.

   In accordance with the nationwide move away from rehabilitation that began in the late 1970s and continued through the 1990s, many states made changes to their existing juvenile justice acts in order to "get tough" on juvenile offenders. (9) One of the more prevalent changes was the addition or modification of existing transfer statutes or waiver laws that allow juvenile offenders to be transferred to adult criminal court for prosecution. (10) By 1979, every state allowed some form of transfer option. (11) During the 1980s and 1990s, virtually every state modified or amended its juvenile court jurisdiction in some fashion. (12) Most states added offenses that were waiver-eligible and lowered the age at which a juvenile could be transferred to criminal court. (13) Many states also supplemented their existing waiver laws by adding additional procedures that removed the decision to waive from the judiciary for certain offenses and streamlined the process by which a juvenile could be transferred to criminal court. (14) As a result, the number of juveniles waived to criminal court increased considerably during this period. (15) In theory, transferring a juvenile offender into the criminal court accomplishes two goals: (i) transfer places juveniles who are beyond the reach of the rehabilitative services offered by the juvenile justice system into the adult criminal justice system; and (2) transfer serves as a mechanism for deterring future juvenile crime. (16) In this study, we examine the deterrent function of juvenile waiver laws.

2. TYPES OF WAIVER STATUTES

   There are several ways in which a juvenile can be transferred to criminal court. Judicial waiver is the process by which a juvenile judge may, at his discretion, transfer a juvenile to criminal court. As of 2003, this type of waiver mechanism was found in forty-eight states and the District of Columbia. (17) Judicial waiver typically requires a transfer hearing where an informed judicial determination is made regarding whether the juvenile offender is beyond the reach of rehabilitative treatment offered in juvenile court. In this way, judicial waiver provides individualized justice for the youthful offender. (18)

   Statutory exclusion, or legislative waiver, is the method by which state legislatures have mandated the exclusion of certain offenses from juvenile court jurisdiction. As of 2003, statutory exclusion was found in thirty-one states and the District of Columbia. (19) Direct file, or prosecutorial discretion, authorizes prosecutors to file certain cases in either juvenile or criminal court under a concurrent jurisdiction statute. As of 2003, direct file statutes were found in fourteen states and the District of Columbia. (20) An underlying assumption of both direct file and statutory exclusion laws is that by excluding certain offenses from juvenile court jurisdiction and placing them instead under criminal court jurisdiction, juveniles would be deterred by the more severe punishment perceived to be handed out in the adult system. (21) While some argue that waiver through statutory exclusion is another form of direct file transfer since the prosecutor ultimately decides how a juvenile is charged, (22) it is important to distinguish these two methods because the state legislatures do. In fact, several states, such as Vermont, have now statutorily excluded some offenses from juvenile court jurisdiction, even though they allow prosecutors the discretion to charge other offenses (without reducing the offense that was charged) in either juvenile or criminal court. (23) Although direct file statutes allow the prosecutor the discretion to keep certain young offenders in juvenile court, prosecutors have historically been inclined to exercise a "just deserts" philosophy in the justice system. (24) By acting in the interest of the state, prosecutors are apt to prioritize the state's interests above that of the juvenile, (25) especially for more serious offenses. (26) Accordingly, one goal of a direct file statute would be to deter future juvenile crime, whether specifically through harsher sanctioning of the transferred juvenile or more generally through the threat of increased punishment to other potential youth offenders. Despite general agreement as to this goal, (27) no study has evaluated whether or not direct file statutes actually achieve a general deterrent effect on juvenile crime.

3. EMPIRICAL STUDIES OF THE EFFECTS OF THE WAIVER STATUTES

   There has been extensive research assessing the various effects of juvenile waiver statutes. Most of this research has either described what happens to juveniles after they have been transferred to criminal court, or tracked the differences in sentencing outcomes imposed in the juvenile versus criminal courts, and the disparities in recidivism rates between waived offenders and those youth retained in the juvenile justice system.

   1. SENTENCING OUTCOMES OF JUVENILES WAIVED TO CRIMINAL COURT

      Studies assessing sentencing outcomes of juveniles waived to criminal court have considered whether transferred juveniles were sentenced to incarceration or probation, as well as how long their sentences were. With regard to the former, findings from some studies indicate that juveniles are more likely to receive probation sentences when transferred to criminal court than if they had proceeded through the juvenile system. (28) Other research indicates that the sentence outcome is contingent on offense type: non-violent offenders tend to receive more incarceration sentences in the juvenile court, (29) while violent offenders tend to receive prison sentences more often in criminal court. (30)

      Studies that examine sentence length or time served for waived youth show that violent offenses earn longer sentences in criminal court than those typically imposed in the juvenile system, while non-violent offenses yield longer sentences in the juvenile system. (31) In addition, Kurlychek and Johnson found that even when all legal and many extralegal factors were controlled for, juveniles waived to criminal court were sentenced to longer sentences than young adults between the ages of eighteen and twenty-four who were sentenced over the same period of time. (32)

      On the other hand, other studies have revealed that even when criminal courts imposed substantial sentences, parole authorities typically released youthful offenders after serving less time than they would have served had they remained in the juvenile system. (33) Therefore, it remains unclear whether waived juveniles are in fact punished more harshly when waived to criminal court.

   2. RECIDIVISM OF JUVENILES WAIVED TO CRIMINAL COURT

      In an effort to assess the specific deterrent effect of waiver laws, scholars have also compared the difference in recidivism rates between waived youth and similarly situated juvenile offenders. Contradicting the expectations of deterrence advocates, recidivism rates have generally been lower for youth retained in juvenile court when compared to those transferred to criminal court. (34) Transferred juveniles have also been found to re-offend sooner and more often than those youth processed in the juvenile system. (35) The studies by Donna Bishop and her colleagues are especially relevant to our focus. (36) These studies relied on data from Florida, where the majority of cases transferred to criminal court are waived by direct filing, (37) suggesting that this type of waiver may not have a deterrent effect on the juvenile offenders who are transferred to criminal court. (38)

      On the other hand, while it is likely the state legislatures were trying to improve the judiciary's ability to sentence serious and violent juvenile offenders more severely by allowing for adult criminal sanctions in certain cases, it is equally plausible that they were attempting to deter potentially serious and violent juvenile crime in general. Determining these aggregate-level effects, however, would not be possible from the aforementioned...