The Effect of Legal and Extralegal Factors on Statutory Exclusion of Juvenile Offenders

• Author: John H. Lemmon,Thomas L. Austin,P. J. Verrecchia,Matthew Fetzer
• DOI: 10.1177/1541204005276263
• Published date: 01 July 2005
• Date: 01 July 2005
• Subject Matter: Articles

10.1177/1541204005276263Youth Violence and Juvenile JusticeLemmon et al. / STATUTORY EXCLUSION OF JUVENILE OFFENDERS

THE EFFECT OF LEGAL AND EXTRALEGAL

FACTORS ON STATUTORY EXCLUSION OF

JUVENILE OFFENDERS

John H. Lemmon

Thomas L. Austin

Shippensburg University

P. J. Verrecchia

Duquesne University

Matthew Fetzer

University at Albany

The study describes implementation of legislation that excludes youth offenders from ju-

venile court jurisdiction and examines two elements of deterrence theory that under-

scored the legislation’s rationale. Between-court analyses comparing youths decerti-

fied to juvenile court with those remaining in criminal court report no between-court

differences concerning the certainty of punishment. Although the criminal court was

more likely to impose more severe sentences, controls on legal sentencing factors ex-

plained the between-group differences. Legal and extralegal factors predicted the likeli-

hood of certainty and severity of punishment within the juvenile and adult systems

respectively. Implications for the restorative justice model are discussed.

Keywords: youth violence; statutory exclusion; deterrence theory

Since the early days of the juvenile court, legal mechanisms have been in place to re-

move certain habitual and violent offenders from the protection of the court and punish

them with adult penalties. The exclusion1of certain youth offenders from the protections

and immunities of the juvenile justice system meant that instead of being diverted from the

criminal court these individuals faced the legitimate criminal sanctions warranted for com-

mitting chronic and/or serious crimes (Sanborn, 2003). The idea behind the juvenile court

was that it served as a diversionary system of justice that considered the special characteris-

tics of childhood and the absence of sufficient culpability among most young offenders who

were likely to respond favorably to rehabilitation (Howell, 1997; Sanborn, 1994, 2003).

The variety of rationales for exclusionary mechanisms have included general (reduction of

delinquency), and specific (reduction of recidivism) deterrence, retribution for serious

crimes, greater community protection, as well as preservation of the juvenile court and its

policy of rehabilitation (Mears, 2003; Sanborn, 2003). Public concern about recent in-

creases in chronic and violent youth offending (Blumstein, 1995; Empey, 1979; Fox, 1996;

Sickmund, Snyder, & Poe-Yamagata, 1997; Snyder & Sickmund, 1999) has led to the

widespread passage of legislative reforms that have increased the types and numbers of

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Youth Violence and Juvenile Justice, Vol. 3 No. 3, July 2005 214-234

DOI: 10.1177/1541204005276263

© 2005 Sage Publications

exclusionary mechanisms. (For a comprehensive review of exclusionary mechanisms

currently in use by states, see Griffin, Torbet, & Szymanski, 1998; Sanborn, 2003).

It is interesting to note, these so-called get tough initiatives have increased in spite of

the fact that serious youth crime has decreased in recent years (Butts & Travis, 2002;

Snyder, 2003; Whitehead & Lab, 2004) because reducing serious youth crime was a driving

force behind these reform efforts. For example, between 1994 and 2001 the juvenile arrest

rate for Violent Crime Index offenses (murder, rape, robbery, and aggravated assault) fell

44% (Snyder, 2003). Moreover, the decline was consistent during this 7-year period.

Currently, a variety of mechanisms are available to treat juveniles as adult offenders.

These may include blended sentencing, direct file provisions, judicial waiver, and statutory

exclusion (Griffin et al., 1998; Mears, 2003). Blended sentences involve sentencing a youth

offender in juvenile court to adult sanctions. Direct file provisions give prosecutors the dis-

cretion to determine whether to initiate a juvenile case in criminal court.

Judicial waiver involves a range of processes that may allow juvenile court judges the

discretion to transfer offenders to criminal court if they meet specific threshold criteria as

spelled out in the Kent (see Kent v. United States, 1966) and later in Breed v. Jones (1975)

decisions. In addition to discretionary judicial transfer, some states (including Pennsylva-

nia) employ a presumptive judicial waiver requirement that assumes that cases will be

waived unless a compelling argument can be presented to prevent the transfer (Mears,

2003). Under Pennsylvania’s judicial waiver guidelines (see The Pennsylvania Juvenile

Act, 1995, Sec. 6355), the burden of proof is on the juvenile to establish that he or she is still

amenable to treatment through juvenile court services. If a juvenile meets certain statutory

criteria and fails to make an adequate argument against transfer, the case must be sent to

criminal court. Fourteen states also provide for mandatory judicial waiver in cases that meet

certain age, offense, and other criteria (Griffin et al., 1998; Mears, 2003). Such proceedings

are similar to statutory exclusion except that the juvenile court has original jurisdiction and

conducts a preliminary evaluation to determine if the case meets the mandatory waiver

statute. If this is the case, the juvenile court then issues an order transferring the case to the

criminal court.

Under statutory exclusion, cases that meet certain age, offense, or other criteria are

processed directly by the criminal courts, bypassing the juvenile system completely. Penn-

sylvania’s Juvenile Act was amended in 1995 as Act 33 of 1995, (hereto known as Act 33 or

the Act) to include a statutory exclusion mechanism. Act 33 excludes two categories of of-

fenders from the juvenile court process; (Tier I) juveniles ages 15 to 18 years alleged to

have committed a violent offense with a dangerous weapon and, (Tier II) juveniles ages 15

to 18 years who are repeat violent offenders.2Because Pennsylvania already has discretion-

ary and presumptive judicial waiver provisions in its existing code, the Act implicitly pro-

vides for prosecutorial discretion (because district attorneys have control over the types of

charges filed) to move juveniles into the adult justice system. The creation of a statutory ex-

clusion mechanism is only one part of the sweeping reforms covered in the Act 33 legisla-

tion. The Act also includes language that allows the public to attend juvenile court hearings

for certain serious offenses and permits easier access to juvenile court records. The Act au-

thorizes fingerprinting and photographing of juvenile defendants along with DNA testing

of adjudicated sexual offenders. The courts are now required to notify schools concerning

the dispositions of juvenile court cases while policies in handling truants have been revised.

Act 33 has also mandated the statewide implementation of the restorative justice model.

(For a description of the elements of restorative justice, see Van Ness & Heetderks-Strong,

2002).

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