Transfer or Waiver to Adult Court

• Author: Anthony G. Amsterdam/Martin Guggenheim/Randy A. Hertz
• Profession: University Professor and Professor of Law at New York University/Fiorello LaGuardia Professor of Clinical Law at New York University School of Law/Professor of Clinical Law at NYU School of Law
• Pages: 271-296

271

CHAPTER 13

TRANSFER OR WAIVER

TO ADULT COURT

§ 13.01 Introduction

Every State provides that persons under a certain age who are accused of violating the

penal law are eligible for prosecution as juvenile delinquents in juvenile court. How-

ever, every State also retains the power to selectively prosecute otherwise eligible juve-

niles in adult crim inal court. When prosecuted in adult cri minal court, juveniles are not

referred to as delinquents, though frequently another label different from “criminal,”

such as “youthfu l of fender” or “juvenile offender,” will be used.

The decision to prosecute in adult court a person otherwise eligible for prosecu-

tion as a delinquent affects many different aspects of the process. On the credit side,

the young person will be entitled to all of the constitutional and statutory rights that

adults accused of crime enjoy in the State, including such rights as the right to trial by

jury (a major benefit in the many jur isdictions in which there is no such right for accused

delinquents), open and public proceedings, bail, and prosecution only on indictment

by a grand jury. In addition, because sentencing in adult court is governed by statutory

maximum terms graduated according to the severity of offenses rather than following

the juvenile court model, which looks exclusively at the rehabilitative needs of the par-

ticular offender, the juvenile who is convicted only of a misdemeanor or minor felony

offense may be eligible for, or actually receive, a sentence less severe than s /he would have

received if prosecuted as a juvenile delinquent. On t he debit side, the maximum sentence

that the young person prosecuted in adult court may receive for serious offenses fre-

quently is considerably greater than s/he could have received if adjudicated a delinquent.

Not only is the maxi mum length of sentence for severe crimes greater, sometimes equal-

ing the maximum available for an adult (except those sentences that are barred by the

Eighth Amendment if the offender was below age 18 at the time of the crime, seeRoper

v. Sim mons, 543 U.S. 551 (2005) (capital punishment); Graham v. Florida, 130 S. Ct. 2011

(2010) (life without the possibil it y of parole in non-homicide cases); see alsoMiller v. Ala-

bama, 132 S. Ct. 2455 (2012) (barring mandatory sentenc ing of li fe impr isonme nt witho ut

the possibility of parole for any offender who was below age 18 at the time of the cri me)),

but the place of confinement may be an adult correctional facility. (Many jurisdictions

do provide that the part of the sentence that runs through the young person’s minority

(usually age 18) must be served in facilities maintained by the department t hat supervises

272 | Trial M anual for Defense Attorneys in Ju venile Delinquency Cases

the incarceration of delinquents, rather than by the adult correctional department.) See

generally Aaron Kupchik, Jeffrey Fagan & Akiva Liberman, Punishment, Proportionality,

and Jurisdictional Transfer of Adolescent Offenders: A Test of the Leniency Gap Hypothesis, 14

S. L.  P’ R. 57 (2003).

There are varied and numerous schemes for determini ng when and how the decision

whether to prosecute as a juvenile or an adult is made. Several different schemes will be

briefly described here. Although these schemes do not exhaust the variety employed by

the fift y States, they provide a useful national overview.

In most States there is a min imum age below which a juvenile cannot be prosecuted

in criminal court. In some jurisdictions all juveniles above a certain age may be pros-

ecuted as adults. In some States, regardless of age, juveniles charged with specific seri-

ous offenses may be prosecuted in either juvenile or criminal court. In still other States

juveniles charged with specific serious crimes must be tried in criminal court. In most

jurisdictions juveniles charged with serious offenses who are above a certain age may be

prosecuted either in juvenile or adult court.

Both the reasons for waiver and t he process for making the determinat ion vary widely

from jurisdict ion to jurisdiction. In those jurisd ictions in which all juveniles charged w it h

certain serious offenses, regardless of age, must be tried as adults, the prosecutor effec-

tively decides where the child will be prosecuted, either by determining what degree of

charge to lodge or by deciding in which court to file the charges. In the majority of juris-

dictions there is discretion beyond that inherent in the charge selected, which must be

exercised by a state official before t he decision is made in which court t he young person is

to be prosecuted. In these ju risdictions typically t he juvenile court judge is empowered to

decide whether to transfer and must hold a hearing before making a transfer order, or, as

it is sometimes called, an order “waiving” juvenile court jurisdiction.

Needless to say, the decision to prosecute a person otherwise eligible for juvenile

court ju risdiction in an adult cr iminal cour t is momentous. It should be no s urprise that

the first decision ever rendered by the Supreme Cour t of the United States on the subject

of juvenile courts focused on the due process requirements that apply to this decision.

In Kent v. United States, 383 U.S. 541, 556–57 (1966), the Court stated that waiver of

jurisdiction is a “‘critically important’” stage in the juvenile court process and must be

attended by certain minimum safeguards of due process to satisfy the Const it ution.

§ 13.02 Factors That Affect the Decision Whether

to Oppose Transfer to Adult Court

Counsel can play an important role in defending a juvenile at this stage. What coun-

sel does, however, depends on a number of factors. Initially, counsel must determine

whether the client will be better off being prosecuted in juvenile court rather than in

adult criminal court. Although this will usually be the case, counsel should not auto-

matically assume that it is. Counsel must consider the following factors:

First, counsel should calculate the maximum sentence that the client could receive,

the probable sentence that s/he would receive, and the potential places of conf inement, if