Transfer of Child Offenders to Adult Criminal Courts in the Usa: an Unnecessary Exercise, Unconstitutional Practice, International Law Violation, or All of the Above?

• Jurisdiction: United States,Federal
• Citation: Vol. 49 No. 1
• Publication year: 2021

Transfer of Child Offenders to Adult Criminal Courts in the USA: An Unnecessary Exercise, Unconstitutional Practice, International Law Violation, or All of the Above?

Roger-Claude Liwanga^* and Patrick Ibe^*

Table of Contents

I. Abstract..............................................................................................101

II. Introduction......................................................................................101

III. Overview of the Concept of Judicial Waiver...........................106

A. Origin and Characteristics of the Transfer of Child Offenders ...........................................................................................106

i. Who is a Child (Offender)?............................................107
ii. Variation Between How U.S. States Define Judicial Waiver.........................................................................109
iii. Characteristics of Judicial Waiver...............................109

1. Age for Transfer...................................................109
2. Types of Crimes....................................................110

B. Category of Transfer of Juveniles Laws.............................111

i. Statutory Exclusion or Automatic Transfer Laws ......111
ii. Judicial Discretion Laws or Judicially Controlled Transfer.......................................................................111
iii. Prosecutorial Discretion Laws or Concurrent Jurisdiction Laws........................................................112
iv. Once an Adult, Always an Adult Policies...................112

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IV. Analysis of the Constitutionality of the Transfer Laws in the United States.......................................................................113

A. Kent v. United States..........................................................113

i. Background.....................................................................113
ii. Conditions for the Constitutionality of Juvenile Transfer .....................................................................................115

B. Breed v. Jones.....................................................................116
C. Observations on the U.S. Supreme Court Rulings on the Kent and Breed Cases................................................................117
D. Is it Time for the Re-visitation of the Judicial Waiver Policies?: The Kent and Breed cases versus the Roper and Miller cases........................................................................117

V. Legality of Judicial Waiver Under International Law..........118

A. A Child's Right to Juvenile Justice.....................................119
B. Juvenile Court as a Specialized and Rehabilitating Court . 120
C. Children's Right to Juvenile Justice as Part of Customary International Law..............................................................121

VI. Effectiveness of the Judicial Waiver Practice........................124

A. Deterrent Effect of Judicial Waiver....................................124

i. General Deterrence.....................................................124
ii. Specific Deterrence and Recidivism...........................126

VII. Conclusion......................................................................................127

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I. Abstract

There is an ongoing debate over the legality and effectiveness of the use of judicial waiver as a tool to fight violent crimes, including those committed by children in the United States. Judicial waiver or transfer of juveniles is a process by which child offenders are transferred from the juvenile court to adult criminal courts to be tried and sentenced as adult offenders. Despite the implicit recognition of the constitutionality of this practice by the United States Supreme Court, this paper contends that the transfer of child offenders to adult criminal courts violates key provisions of the Convention on the Rights of the Child ("CRC"). Article 40(2)(iii) of the CRC guarantees each child offender the right to have their case adjudicated by a competent and specialized court (such as a juvenile court), regardless of the gravity of their acts. The right to a competent court, which is one of the components of the right to a fair trial, is part of the customary international law that should be enforced by all nations, including those who have ratified the CRC and those who have not (like the United States). It also suggests that judicial waiver is an ineffective practice, as its deterrent virtue against youth recidivism and juvenile violent crimes is largely unproven. It correspondingly highlights that the recidivism rates are lower for child offenders tried in juvenile court than for those who are transferred to adult criminal courts. This paper consequently recommends the restoration of the full jurisdiction of juvenile courts over all child offenses and proposes the reversal of the judicial waiver laws because of their failure to ensure children's right to a competent and specialized system.

II. Introduction

Numerous international and domestic legal instruments protecting children's rights acknowledge the separation between adult and children tribunals.¹ Article

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40(2)(b)(iii) of the 1989 Convention on the Rights of the Child ("CRC") provides, for instance, that: "[e]very child alleged as or accused of having infringed the penal law has at least the following guarantees: . . . to have the matter determined without delay by a competent . . . authority or judicial body in a fair hearing according to law."²

Unquestionably, the term "competent . . . judicial body[,]" which the CRC uses in Article 40, should be read as referring a juvenile court established and specialized to handle all cases of delinquency committed by children under the age of eighteen.³ Unlike adult courts, juvenile courts should place more emphasis on treatment and rehabilitation, rather than punishment of child offenders.⁴ In other words, due to their immaturity and underdeveloped sense of responsibility, child offenders should not be tried in the same courts that deal with adult criminals nor be sentenced as adult criminals, regardless of the nature and gravity of their criminal offenses.⁵

Recognizing the importance of instituting different treatments between child offenders and adult criminals, the United States Supreme Court adopted a strong stance in Roper v. Simmons, and Miller v. Alabama.⁶ In these cases, the Supreme Court was respectively requested to assess the questions of whether (1) the execution of a child offender; and (2) the imposition of a life-without-parole sentence on a child offender violate the constitutional prohibition on cruel and unusual punishment as articulated in the Eighth Amendment and applied to the states through the Fourteenth Amendment.⁷ While responding affirmatively to those

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questions, the Supreme Court highlighted the psychological difference between child offenders and adult criminals by emphasizing that the former should not be classified among the worst offenders.⁸ Such a distinction should be reflected in the handling of child offenders by the juvenile justice system, irrespective of the seriousness of the offenses that the juvenile is accused of committing. Furthermore, the Supreme Court underlined that child offenders are less morally inexcusable than adults for an array of reasons: their immaturity and irresponsibility, their own vulnerability and lack of control that make it far more difficult for them to escape negative societal influences when compared with adult offenders, and their struggle in defining their own identity.⁹

The premise is that if a child offender who committed a murder cannot be sentenced to death—a sanction that could be imposed on adult offenders who committed a similar crime—owing to their underdeveloped sense of responsibility, then it is obvious that the same child offender should not be tried in an adult criminal court. This is because a child offender's immaturity would prevent them from understanding the complexity of the adult criminal justice system. The requirement of exclusive adjudication of child offenders' cases in juvenile courts also constitutes one of the "fundamental principles of a fair trial," and is part of customary international law, meaning that the right should be globally enforced.¹⁰

Each of the fifty states in the United States has a juvenile justice system within its jurisdiction and established juvenile courts competent to adjudicate criminal offenses committed by children.¹¹ Yet despite the existence of these juvenile courts, each state in the United States has also approved domestic provisions consecrating the practice of "judicial waiver."¹² Judicial waiver, or transfer of juveniles, is a process through which child offenders are transferred from the juvenile court to the adult criminal court to be tried and eventually sentenced as an adult offender for their misconduct.¹³ With the practice of judicial waiver, juvenile courts effectively abandon their role as competent and specialized tribunals for children in exchange for an inexpert tribunal, the adult criminal court.

Among the U.S. states implementing judicial waiver policies, the application of this practice is far from uniform. In most U.S. states, judicial waiver commonly applies to child offenders of a certain age, particularly those ranging from

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fourteen to seventeen years old.¹⁴ Other state laws only authorize the transfer of minors who have committed serious crimes (including vehicle theft, burglary, robbery, murder, and rape) or those who have demonstrated a certain degree of maturity with regard to their criminal offenses.¹⁵ Certain local statutes permit the transfer of juveniles who have committed specified crimes regardless of their age.¹⁶

A recent report from the National Center for Juvenile Justice revealed that approximately 7,500 to 8,000 child offender cases were transferred from juvenile courts to...