The Decision to Incarcerate in Juvenile and Criminal Courts

• Date: 01 December 2006
• Published date: 01 December 2006
• Author: Aaron Kupchik
• DOI: 10.1177/0734016806295584
• Subject Matter: Articles

The Decision to Incarcerate in

Juvenile and Criminal Courts

Aaron Kupchik

University of Delaware, Newark

Despite a recent proliferation of laws transferring adolescents from juvenile court to criminal

court, no research examines whether these transfer policies subject adolescents to a different

set of evaluative criteria in criminal courts than in juvenile courts. Prior literature and politi-

cal rhetoric suggest that a criminal justice model of offense-based evaluative criteria would

apply in the criminal court, in contrast to an offender-based juvenile justice model. Yet this

hypothesis remains untested by prior research. In response, this article tests whether legal and

case-processing factors have a relatively greater influence in criminal than in juvenile court,

as the literature and political rhetoric would predict. To do so,the author uses comparable sam-

ples of cases, matched by age and offense, from two adjacent jurisdictions with different

thresholds for criminal court eligibility. By finding no differences among factors predicting

sentencing across the two legal forums, the results challenge widely held assumptions about

the distinctions between juvenile and criminal courts.

Keywords: transfer; sentencing; juvenile justice

The prosecution of adolescent offenders in criminal (adult) courts is an increasingly

common phenomenon. In the past 25 years, nearly every state in the United States has

revised its laws or adopted new legislation to facilitate the transfer of adolescent offenders

from juvenile courts to criminal courts to be tried as adults (Dawson, 2000; Feld, 2000;

Snyder & Sickmund, 1999; Zimring, 1998). This proliferation of laws transferring juris-

diction from juvenile to criminal court—known as transfer policies—fits within a larger

crime control movement of being “tough on crime,” and tough on juvenile crime in partic-

ular (Bortner, Zatz, & Hawkins, 2000; Feld, 1999; Mears, 2001).

By implementing transfer policies, policy makers seek to impose greater punishment for

adolescents who commit serious offenses (Zimring, 1998) and who are deemed unworthy of

the protections provided by juvenile court (Singer, 1996). Transferring adolescents to crimi-

nal court follows from the belief that violent and chronically delinquent children should be

punished in proportion to the severity of their offenses, rather than treated differently than

“real” criminals because of their youthfulness (see DiFrancesco, 1980; Regnery, 1986). In

addition to increased punishments in criminal court, transfer policies also seek to subject

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Criminal Justice Review

Volume 31 Number 4

December 2006 309-336

© 2006 Georgia State University

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Author’s Note:A previous version of this article won the 2002 American Society of Criminology Gene Carte

Student Paper Competition. The author would like to thank David Greenberg, Jeffrey Fagan, John Hepburn, Jo

Dixon, Akiva Liberman, Donna Bishop, and Joseph De Angelis for their helpful comments on earlier drafts of

this article. This research was funded in part by the National Science Foundation (SES-0004334) and by the

National Institute of Justice (2001-IJ-CX-0005). Any opinions, findings,and conclusions are those of the author

and do not necessarily reflect the views of either funding agency.

adolescents to different evaluative criteria than typically found in juvenile courts. Prior scholars

and policy makers often take for granted that the transfer process results in the imposition of

an ideal–typical “criminal justice” model, in which offenders are punished proportionally to

their offenses, rather than an ideal–typical “juvenile justice” model, in which adolescents are

judged and treated according to their individually assessed rehabilitative needs (see Feld,

1999; Zimring, 1998). In the following sections I discuss these two theoretical models and

how one might expect them to result in differences across juvenile and criminal courts.

Despite the assumed distinction between the models of justice reflected by criminal

courts and juvenile courts, the actual practices of juvenile and criminal courts prosecuting

adolescents may not be entirely distinct. Courtroom workgroups often are not able to dis-

pose with traditional concerns and norms of justice following the introduction of laws that

contradict them. For example, by studying the implementation of sentencing guidelines in

the federal court system and in Minnesota, Joachim Savelsberg (1992) demonstrated how

efforts to formalize sentencing through neoclassical sentencing guidelines are impeded by

structural and cultural factors, such as norms guiding court decision making (see also

Ulmer & Kramer, 1996). Other scholars as well find that formal policies are “filtered”

through and adapted by local legal communities (Dixon, 1995; Eisenstein, Flemming, &

Nardulli, 1988; Ulmer, 1997; Ulmer & Kramer, 1998) or subverted to the organizational

efficiency needs of courtroom actors (Engen & Steen, 2000). Hence, it is possible that the

distinctions between juvenile and criminal courts are mitigated by courtroom workgroups

that filter and adapt transfer policies to reproduce a juvenile justice model in the criminal

court (Kupchik, 2003; Singer, Fagan, & Liberman, 2000).

In this article, I consider the actual distinctions between juvenile and criminal courts pros-

ecuting adolescents, first by comparing punishments across these two court types, and then

by asking whether offense severity, prior record, and case-processing factors (e.g., prior

bench warrants, pretrial detention) are more influential in criminal court than juvenile court.

If in fact juvenile and criminal courts operate according to different models of justice—with

a criminal justice model operating in criminal court and a juvenile justice model in juvenile

court—then I will find a significant difference in both the punishments and the factors that

predict sentencing decisions across court types, with offense severity, prior record, and case-

processing factors having a larger influence in criminal than juvenile court. However, it is

also possible that courtroom workgroup members “filter” transfer policies to take youthful-

ness into account when sentencing adolescents and to use similar sentencing criteria as in

juvenile court. Such a result would be consistent with prior research showing that criminal

court decision makers do take age into account in sentencing, often by allocating less severe

sentences to young adults than older offenders1(Steffensmeier & Demuth, 2000;

Steffensmeier, Ulmer, & Kramer, 1998). If it is indeed true that courtroom workgroup mem-

bers “filter” transfer polices, then I will find no difference among factors predicting

sentencing decision making across court types. To make these comparisons, I analyze data

collected via a natural experimental design (see Fagan, 1990), with comparable samples of

16-year-old offenders prosecuted in both types of courts in two adjacent states (New York

and New Jersey).

Comparing sentencing decision making across juvenile and criminal courts is important for

both development of theory and an understanding of juvenile justice policy. Its primary theo-

retical contribution is to test whether a conceptual distinction between sentencing in juvenile

310 Criminal Justice Review