Academic journal article Journal of Criminal Law and Criminology

Assessing the Relative Effects of State Direct File Waiver Laws on Violent Juvenile Crime: Deterrence or Irrelevance?

Academic journal article Journal of Criminal Law and Criminology

Assessing the Relative Effects of State Direct File Waiver Laws on Violent Juvenile Crime: Deterrence or Irrelevance?

Article excerpt

I. INTRODUCTION

A separate and distinct juvenile justice system was founded on the Progressive Era belief that juvenile offenders were merely delinquent and in need of individualized treatment wherein the ultimate goal was their rehabilitation. (1) During the 1970s and throughout the 1980s, however, the rehabilitative ideal that had guided both the adult and juvenile justice systems came under attack. (2) Conservatives argued that rehabilitation programs had failed and suggested that the crime rate was rising because offenders had no reason to fear incapacitation; in short, conservatives felt that the current system did not deter future crime. (3) Their position was not unfounded. Juvenile violence began to rise in the 1970s and escalated substantially in the 1980s. (4) The juvenile arrest rate for violent crime rose 62% between 1988 and 1994 and the juvenile homicide rate doubled between 1987 and 1993. (5) At the same time conservatives were claiming the system was soft on crime, liberals questioned the philosophy of rehabilitation, judges' potential biases and broad discretionary powers, and the ability of corrections officials to determine when an offender was truly "rehabilitated." (6) In response to the pervasive discretion in both the adult and juvenile systems, the United States Supreme Court embarked on a due process campaign that extended to the juvenile justice system and essentially criminalized the traditionally informal juvenile court by affording juveniles many of the same procedural rights guaranteed adult defendants. (7)

The juxtaposition of the widespread rejection of the rehabilitative ideal, the rise in violent juvenile crime, and the due process movement in the Supreme Court altered the juvenile justice system from an informal, highly offender-oriented criminal justice system to a much more formal, victim-oriented, "just deserts" style of system. (8) Simply put, the focus shifted from the offender to the offense.

In accordance with the nationwide move away from rehabilitation that began in the late 1970s and continued through the 1990s, many states made changes to their existing juvenile justice acts in order to "get tough" on juvenile offenders. (9) One of the more prevalent changes was the addition or modification of existing transfer statutes or waiver laws that allow juvenile offenders to be transferred to adult criminal court for prosecution. (10) By 1979, every state allowed some form of transfer option. (11) During the 1980s and 1990s, virtually every state modified or amended its juvenile court jurisdiction in some fashion. (12) Most states added offenses that were waiver-eligible and lowered the age at which a juvenile could be transferred to criminal court. (13) Many states also supplemented their existing waiver laws by adding additional procedures that removed the decision to waive from the judiciary for certain offenses and streamlined the process by which a juvenile could be transferred to criminal court. (14) As a result, the number of juveniles waived to criminal court increased considerably during this period. (15) In theory, transferring a juvenile offender into the criminal court accomplishes two goals: (i) transfer places juveniles who are beyond the reach of the rehabilitative services offered by the juvenile justice system into the adult criminal justice system; and (2) transfer serves as a mechanism for deterring future juvenile crime. (16) In this study, we examine the deterrent function of juvenile waiver laws.

II. TYPES OF WAIVER STATUTES

There are several ways in which a juvenile can be transferred to criminal court. Judicial waiver is the process by which a juvenile judge may, at his discretion, transfer a juvenile to criminal court. As of 2003, this type of waiver mechanism was found in forty-eight states and the District of Columbia. (17) Judicial waiver typically requires a transfer hearing where an informed judicial determination is made regarding whether the juvenile offender is beyond the reach of rehabilitative treatment offered in juvenile court. …

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