Waiving juveniles to criminal court: court officials express their thoughts.

• Author: Urbina, Martin Guevara

Introduction

HISTORICALLY, THE UNITED STATES LEGAL SYSTEM HAS RESPONDED WITH PUNITIVE sanctions to crime and the fear it creates. Over the last two decades, juvenile sanctions have taken on new meaning due in part to claims that juveniles are getting out of control. Some policymakers feel that the juvenile system is no longer the best option for young offenders, and thus laws are being modified to accommodate what some view as the modern practice of controlling young criminals: adult sanctions for adult crimes in the criminal justice system.

During the 1990s, 49 states modified their statutes to increase the number of juveniles tried as adults. The legal mechanisms that allow transfers are judicial waiver, legislative waiver (also known as legislative exclusion or automatic waiver), prosecutorial waiver, and self-certification or demand waiver. Currently, the most common type of transfer mechanism to adult court is the judicial waiver, yet it is the most ambiguous procedure. Indeed, approximately 210,000 minors nationwide are now tried in adult courts each year (Advocasey, :2003). Juvenile crime rates, though, have declined since the early 1990s.

Since sentencing decisions are often "based on competing principles of retribution, isolation, incapacitation, rehabilitation, and deterrence" (Ruddell et al., 1998: 3), the expected benefits such as deterrence, rehabilitation, and protection for society have not been obvious (see Olmsted and Perry, 1979; Schwartz, 1983), and procedural and substantive shortcomings have been quick to surface (see Verrecchia, 2003). For instance, a study of the effects of Illinois and New York state legislation requiring the transfer of juveniles to adult court for specific offenses reported that "the costs, both financial and social, of mandatory transfer far outstrip whatever potential benefits there arc" (Reed et al., 1983: 32). More recent data also indicate that newly created waiver mechanisms have accomplished few of the goals of transfer advocates, and instead lead to serious unintended consequences (see Howell, 1996).

Wizner (1984: 48) described the waiver system as "chaotic and irrational." Today, the various mechanisms that states use to waive juveniles to adult court are mostly clear, but the objectives underlying the transfer process often lack clarity, especially regarding the final outcomes of youths who are punished in adult court. There appears to be a consensus among most advocates of waivers that capital punishment is too harsh for juveniles, but beyond this issue, the question of what is legitimate, just, reasonable, and equitable remains vague. Recently, the debate has extended to the question of which authority or person should be making waiver decisions.

In sum, the literature provides great insight into who is transferred, the offenses that have precipitated transfers, the quality of punishment, and, to a lesser degree, the impact of waivers on deterrence. Although transfer provisions and practice have come together so that prosecutors can now transfer almost any juvenile perceived to be a threat to the social order, final outcomes do not necessarily match societal or legislative expectations. Prosecutors, like judges, may want more discretion, but having it is not likely to change their behavior significantly. Some practitioners will not alter their behavior simply because a statute is revised or a new statute is in place. Independent of what the statute might demand, especially when the future of a youth is at stake, the final decision of the judge, prosecutor, and defense attorney is personal.

The current study, then, will seek to better understand modern legislative reforms and, more important, "the why, when, and how" of final outcomes, with the hope that waiver decisions will be made a more explicit and better-documented part of public discussions. Judges, prosecutors, and public defenders in all of Wisconsin's 72 counties were given the opportunity to participate in this study. According to Torbet et al. (2000: xi), Wisconsin, Minnesota, and New Mexico are unique for investigations of trends in punishment within juvenile justice "because they embarked on significant but discrete experiments and because their approaches are in some sense representative of broader national trends."

Background Data

Adult Sentencing

Studies conducted in the late 1970s and early to mid-1980s found that the majority of juveniles sentenced in adult court received probation or some other alternative to incarceration (Bishop et al., 1989; Bortner, 1986; Fagan et al., 1987; Hamparian et al., 1982; Heuser, 1984). Research conducted during the late 1980s and early to mid-1990s on whether transferred youths actually received tougher sanctions report mixed findings (Fagan, 1991; Fagan and Deschenes, 1990; Fritsch, Caeti, and Hemmens, 1996; Fritsch, Hemmens, and Caeti, 1996; Houghtalin and Mays, 1991; Poulos and Orchowsky, 1994; Rudman et al., 1986). Other studies, though, report a much more complicated picture of waiver decisions (Barnes and Franz, 1989; Podkopacz and Feld, 1996), and the findings for youths involved in property offenses are less consistent (Bishop et al., 1996; Fritsch, Caeti, and Hemmens, 1996). Still other studies report findings opposite to waiver expectations (Fagan, 1995, 1996; McNulty, 1996). Although a principal rationale for waivers is to assure more severe penalties, more recent studies indicate that, with the exception of violent offenders, most transferred juveniles receive community sentences (Advocasey, 2003; Bureau of Data and Research, 1999; Frazier, 1999; Lanza-Kaduce et al., 2002; Snyder et al., 2000).

Several waiver studies found that transferred juveniles were often handled more leniently in criminal court than they would have been in juvenile court, in part because they were appearing in criminal court for the first time at a relatively young age. Overall, empirical studies of transfer outcomes throughout the United States suggest that conviction rates for waived juveniles vary from approximately 60 to 90%, with approximately 30 to 60% of convictions resulting in at least some incarceration. The odds of incarceration therefore vary from a low of two to a high of six for every 10 juveniles waived to adult court. In addition, studies found that although transfer to criminal court was intended for the most serious juvenile offenders, some waived juveniles were not violent offenders, but rather repeat property offenders (Howell, 1996; Feld, 1987; Snyder and Sickmund, 1995; Nimick et al., 1986).

Deterrence

Much like the sentencing hypothesis, the deterrence hypothesis does not have strong empirical support (see Jensen and Metsger, 1994; Lotke and Schiraldi, 1997; Risler et al., 1998; Singer, 1996; Singer and McDowall, 1988). In some cases, waiver decisions led to outcomes that were the opposite of those expected (Bishop et al., 1996; Podkopacz and Feld, 1996). Fagan (1995: 252) concluded that none of the promises noted by transfer advocates have "been fulfilled." A Florida study documented that transferring juveniles to adult court was "more likely to aggravate recidivism than to stem it" (Winner et al., 1997: 558-559). In a Pennsylvania study, juveniles sent to adult jails re-offended more often and with more serious crimes than their counterparts who remained in juvenile courts and went to reform schools (Advocasey, 2003; Lanza-Kaduce et al., 2002).

Together, contrary to conventional wisdom, both the sentencing and deterrence hypotheses are not well supported by prior empirical studies. Overall, transfer studies indicate that those waived: (1) were not necessarily violent offenders, (2) did not necessarily receive harsher punishment in criminal court than they would have received in juvenile court, (3) were not necessarily incarcerated, and (4) if incarcerated, did not necessarily receive longer sentences than their counterparts who remained in the juvenile justice system. Studies that compared the recidivism outcomes of those waived to adult court and of juveniles retained in the juvenile system found that transferred juveniles were not deterred, and, in some cases, were more likely to recidivate. Overall, the data indicate that the complex waiver process continues to allow great discretion, enabling court officials to operate in a semi-autonomous manner.

Legal and Extralegal Factors

Like the sentencing decisions of adult offenders, the focus has been primarily on two legal factors: the seriousness of the offense and prior record. The data, though, remain inconclusive as to how influential these factors are in paving the road to adult court (see Feld, 1990; Gaarder and Belknap, 2002; Snyder et al., 2000). Investigators have also tried to provide an extensive analysis of the complex relationship between extralegal variables and waiver decisions (Singer, 1993). Still, no single extralegal factor has received more attention than the issue of race, and, more recently, ethnicity. However, even though the data remain inconclusive on the relationship between racial discrimination and transfers, the evidence leans toward the racial discrimination hypothesis (Advocasey, 2003; Bortner et al., 2000; Fagan and Deschenes, 1990; Feiler and Sheley, 1999; Howell, 1996; Juszkiewicz, 2000; Males and Macallair, 2000; Podkopacz and Feld, 1995; Poulos and Orchowsky, 1994; Stahl, 1999; Van Slambrouck, 2000).

As for possible ethnic effects, few studies have analyzed the treatment of Latinas and Latinos waived to adult court (Brown et al., 1980; Dawson, 1992; Keiter, 1973; Dannefer and Schutt, 1982; Fagan et al., 1987; Juszkiewicz, 2000). Existing studies do reveal a complex picture similar to the African American situation. Independent of the discrimination hypothesis, one statistic that is difficult to dispute is the fact that minority juveniles are disproportionately being found in adult courts. Given these figures, the question becomes: Are certain...