Introduction

Most reasonable people agree that a small number of offenders should be kept out of the juvenile system because they pose a genuine threat to the safety of other juveniles, because the severity of their offense merits a relatively more severe punishment, or because their history of repeated offending bodes poorly for their ultimate rehabilitation. But when the wholesale transfer to criminal court of various classes of juvenile offenders that are defined solely by the charged offense starts to become the rule rather than the exception, we need to stop and take stock of what we are doing. I say this because this represents a fundamental challenge to the developmental premise on which the juvenile court was founded: that adolescents and adults are different in ways that warrant their differential treatment under the law (Ainsworth, 927-951).

Let me briefly overview for those of you unacquainted with the law what "transfer" means and describe the different mechanisms that are used to shift the adjudication of juvenile offenders to the adult, or criminal, justice system. All states allow juveniles under certain conditions to be tried as if they were adults in criminal court. There are three broad mechanisms that can be used to accomplish this:

Judicial Waiver

A juvenile court judge may transfer the case to criminal court (called "waiving" jurisdiction), based on a variety of factors, including the seriousness of the offense, the maturity of the offender, and the likelihood of the offender's rehabilitation. Provisions for this exist in all but five states, although states vary with respect to the lower age limit for this (i.e., the age below which a judge may not transfer the case). In some states, a juvenile court judge must waive jurisdiction for certain offenses if probable cause exists that the juvenile committed the offense. In other states, a process called "presumptive waiver" exists, in which it is presumed appropriate to transfer a juvenile to criminal court unless the juvenile can prove that he/she is suited to juvenile rehabilitation (Ainsworth, 927-951). The judge makes the ultimate decision, but the burden of proof is on the juvenile.

Direct File,

Direct file, sometimes called "Prosecutorial Discretion." In jurisdictions in which this exists, a prosecutor has the discretion to file charges in either juvenile or criminal court. As of 1997, 15 states had direct file statutes.

Statutory Exclusion, sometimes called "Legislative Exclusion,"

"Mandatory Transfer," or "Automatic Transfer." Under statutory exclusion, certain categories of juveniles are automatically excluded from juvenile court. The categories are typically determined by some combination of age and offense (e.g., anyone accused of armed robbery who is 14 or older). As of 1997, 28 states provided for this (Bonnie, 291-316). Some states permit what is called "reverse waiver," where a criminal court judge can waive a case to juvenile court based on various characteristics of the offender and the offense. As in cases of presumptive waiver within the juvenile court, the burden of proof in reverse waiver cases is on the offender (Bonnie, 291-316).

It is difficult to estimate the number of juveniles ...