Academic journal article Judicature , Vol. 92, No. 6
The reduced decision-making capacity of juveniles, and the evidence that unregulated and far-reaching waiver policies do more harm than good, provide a rational basis for returning to the first principles of the juvenile court-intervention and avoiding harm-to restore the traditional borders of the juvenile justice system.
The number of minors in the criminal courLs casts a long shadow over the principles and practices of both juvenile and criminal justice. In the first 75 years of American experience with a separate court and jurisprudence for juvenile offenders, the boundary between juvenile and criminal courts was a stable reflection of broader societal agreements about when adolescents were responsible not only for criminal behavior, but tor a wide range of social and personal behaviors. The juvenile court served the twin goals of protecting adolescent offenders from the stigma and brutality of criminal justice and intervening in their lives to remediate the conditions that gave rise to their antisocial behavior.
Beyond the widely shared consensus on these statutory and jurisdictional thresholds was a parallel consensus that juvenile court judges should have and exercise their discretion to determine which juveniles would be expelled from the therapeutic setting of the juvenile court and remanded to the punitive regime of the criminal courts through a waiver process. Few teens were expelled from the juvenile court, and only after the resources and options of the juvenile court had been exhausted.
That consensus shifted suddenly and dramatically beginning in the 1970s, as both the rate and severity of youth crime increased. Legislators expanded the pathways to the criminal court via either mandatory or discretionary waiver, and by lowering the age of eligibility and increasing the number of offenses for which a youth could be waived.
Today, more than 250,000 youths each year who commit crimes before reaching age 18 are adjudicated and punished as adults. An average of 7,500 juveniles each year are placed in adult correctional confinement or under another form of criminal justice supervision. These jurisdictional choices reflect deeply held assumptions about the nature of teen crime, how society should react to it, and even adolescence itself. The two court systems reflect sharply contrasting ideas about adolescents who break the law - their immaturity and culpability, whether they can be treated or rehabilitated, the security threats they pose, and the punishment they deserve. Sending a youth to adult criminal court usually is irreversible; and it often exposes young lawbreakers to harsh forms of punishment and more unsavory peer influences that in many cases have the perverse effect of increasing criminal activity.
Three sets of empirical facts argue against wide and deep transfer regimes. These facts persuasively argue for a return to the first principles of juvenile justice. First, treating juveniles as adults suggests a level oí culpability and danger that is contradicted by modern social and behavioral science. Laws such as New York's Juvenile Offender Law or California's Proposition 21 assume a level of maturity and responsibility among young adolescents that is sharply at odds with new social and scientific facts. New behavioral and biological research suggests that kids remain immature and therefore less culpable well into late adolescence. As the Supreme Court recognized in Roper i> Simmons, their immaturity makes them less culpable, and the fallibility of individualized assessments to accurately judge maturity and culpability suggests diat a bright line rule at age 18 may be both the fairest and most reliable method of drawing die boundary for adult criminal liability.
Transfer also creates a collateral risk that juveniles in criminal court will lack die necessary adjudicative competence for adult criminal proceedings. Their immaturity makes them less likely to understand dieir rights, more likely to waive them, less able to make meaningful and informed decisions to help in dieir defense, and vulnerable to making statements without a lawyer present even when they know dieir rights. …