ISSUE 11
Is Waiver to Adult Courts a Solution to
Juvenile Crime?
YES: Henry Sontheimer, from "Is Waiver to Adult Court the Best Response to Juvenile Crime?" juvenile justice Update (April/May 1995)
NO: Jennifer Vogel, from ;Throw Away the Key: Juvenile Offenders Are the Willie Hortons of the '90s," Utne Reader (July/August 1994)
ISSUE SUMMARY
YES: Henry Sontheimer, a contributing author to Juvenile Justice Update, pro¬vides a straightforwardisununary of arguments and newly emerging legal policies in support of waiving to adult courts juveniles charged with serious crimes, which, he suggests, will help reduce crime.
NO: Writer and activist Jennifer Vogel contends that placing juveniles into adult courts and prisons is a tragic part of the increasing arrest, neglect, impoverishment, and abuse of America's young.
Records reveal thousands of years of serious tensions between youngsters and their parents4 The Greek philosopher Socrates, for example, bemoaned children of his day who showed little respect for authorityiTo this day it is legal in some societies to stone to death children who are disobedient/ In the United States, parents and children alike complain that they receive no respect from the °they Meanwhile, largely due to the spread of guns and drugs, younger and younger children (sometimes 10 or younger) are killing more, and more or being killed/ Even in the wildest, most violent years in US. history, the rate of juvenile violence and victimization did not equal the current level, according to children's rights advocates. fr
Technically, since 1838, wayward or neglected youths have been subject to state protection (i.e., incarcerated in a state facility) under the doctrine parens pat riae, literally, "the state as the parent." In the late 1890s the first juvenile court was established in Chicago. Members of the turn-of-the-century Pro¬gressive movement prided themselves on the humane treatment of young¬sters. The assumption was that the criminal justice system should work to help youngsters, not to humiliate or punish them. Juveniles went before juve¬nile masters or magistrates instead of judges, and they had hearings instead of trials, all for the ostensible purpose of ascertaining the best way to help the youngsters, not to determine their guilt. Youth service bureaus, social workers, counselors, and many other professional youth workers sprang up for the manifest function of helping juveniles.
Unfortunately, many serious unanticipated negative consequences resulted from these early-twentieth-century reforms. Among these was the creation of the concept of "status offenders." This referred to offenses for children that, if committed by adults, would not elicit official responses and certainly not incarceration. These included running away from home and truancy. Such children would be given the label "children in need of supervision" (CINS). Some could be kept in a juvenile facility until their 21st birthday for being truant or sassy, even at age 14!
In the 1950s and 1960s, criminologists began to worry about the wisdom of spreading the criminal justice net over youths who were not being helped by the system. In fact, many thought that juveniles were probably being per¬manently harmed by being labeled "delinquent." As a consequence of both scholars and activists examining the juvenile justice system, at least three ma¬jor legal decisions were made: Kent v. United States (1966), In re Gault (1967), and In re Winship (1970). These decisions restored legal rights to juveniles —the right to due process, the right to counsel, the right to notification of charges, and the right to appellate review, among others. Although many in¬sist that these and other court decisions have had little real value for juveniles, symbolically they represented a major shift in orientation.
Another major change was the massive effort after the 1950s to keep youths out of training schools. This entailed redirecting accused delinquents to other social services; sometimes ignoring their delinquent actions; and, if shown to be guilty of serious crimes, giving them another chance.
Unfortunately, massive societal changes have occurred in the past 15 or 20 years. Arguably, no component of the legal system has seen more dramatic changes than the treatment of juveniles. Some attribute this to the increasing fear of crime and the get-tough-on-crime approach of state and national leadership. Others blame (or defend) the changes on rising rates of violence among the young.
What policies vis-à-vis juveniles charged with serious crimes make sense? The most dramatic policy emerging in the United States today is encouraging states to waive—or relinquish responsibility for—juveniles to adult courts. Defenders maintain that this is better for society the citizens of which are now calling for whippings and even the execution of some delinquents. Critics are horrified. Some cite the example of Georgia, where 13-year-olds will soon be facing mandatory 10-year prison sentences, part of which will be in adult lockups! Some researchers, however, assert that waivers may not lead to much tougher sentences. In the following selections, Henry Sontheimer indicates that waiver to adult courts would help solve the problem of juvenile crime. Jennifer Vogel argues that the fact that officials are considering such pathways for youngsters who commit terrible crimes indicates that the issue of waivering children to adult courts is simply the tip of a far deeper, more tragic societal problem.
YES Henry Sontheimer
IS WAIVER TO ADULT COURT THE BEST
RESPONSE TO JUVENILE CRIME?
Juvenile courts are an invention of state government; there is no constitutional right to be tried as a juvenile. Consequently, the states have considerable latitude to change the way juveniles are prosecuted. It is estimated that as many as 200,000 juvenile cases are tried in adult courts each year. Given our current social and political environment, this number is likely to increase dramatically. Widespread media coverage of some rather heinous crimes involving juvenile offenders does nothing to alleviate the possibility that this will occur.
Recent state actions have sought to expand the use of waiver from juvenile to adult courts. They stress accountability rather than rehabilitation as the primary sentencing goal and reflect concerns for equity and proportionality as opposed to individualized justice. Given the pressure currently being brought to bear on the juvenile court, the likely result is more changes to liberalize waiver policies.
Studies Show Adult Court Processing Does Not Guarantee a More Punitive Disposition Than Juvenile Court Processing
The traditional justification for waiver—that the juvenile system does not afford the more stringent sanctions available in the adult system—presumes that these harsher sanctions will in fact be imposed if waived juveniles are convicted as adults. However, recent studies show that about one-third of waived juveniles are not incarcerated by adult courts. Many transferred juve-niles are not even convicted due to decisions not to prosecute. Also, conviction rates in adult court jury trials are generally lower than juvenile court adju¬dication rates. Feld (1987) calls this lenient treatment of waived juveniles the "punishment gap."
Relatively lenient sentences may be imposed on transferred juveniles either because their crimes seem less serious than those typically committed by adults or because the juveniles do not have extensive prior records. Although
From Henry Sontheirner, "Is Waiver to Adult Court the Best Response to Juvenile Crime?" Juvenile Justice Update (April/May 1995). Copyright 0 1995 by Civic Research Institute, Inc Reprinted by permission. All rights reserved.
many waived offenders have prior juve¬nile adjudications, this information may not always be available to or admissible in criminal court at the point of sentenc¬ing. It is also possible that judges are re¬luctant to send the young transferred of¬fenders to state prisons for fear they may be victimized there.
Best Rationale for Waiver May Be That It Symbolizes the Seriousness of Committing a Crime
Despite empirical evidence that adult court processing does not guarantee a more punitive disposition than the juvenile court could offer, some argue that waiver is appropriate. Many judges and probation officers feel that waiver serves a symbolic function by "drawing the line" and putting the child on notice that his/her behavior no longer will be afforded the protection of a special forum. Similarly, the risk that a given waiver will result in a lenient criminal court sentence is seen as acceptable, since the child will at least acquire a formal criminal record if convicted. This viewpoint particularly applies to repeat property offenders, since few single delinquent acts may seem serious enough to require waiver.
In the broadest sense, waiver is in¬voked when the maximum available ju¬venile court sanctions do not afford the level of response (i.e., social control) that is appropriate for the alleged offense(s). Judges and/or prosecutors often state that the longest allowable juvenile court sentences do not provide for enough time for the appropriate rehabilitation (or pun¬ishment) of an offender, considering the child's age and the age of maximum ju¬venile court jurisdiction. juvenile court personnel may also fear that the most serious and non-amenable offenders will create management problems if commit-ted to juvenile institutions, thus reduc¬ing the likelihood of successfully treating their more receptive counterparts. This concern may be alleviated by developing specialized juvenile institutions for more serious offenders (as has been proposed in Pennsylvania and other states).
Public Safety, Not Juvenile's Amenability, Governs Waiver
Decision in One State
After several years of study, Minnesota enacted new legislation in 1994 concern¬ing the tr