Juveniles in the Adult System

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Jurisdictional waiver constitutes a type of sentencing decision. Transfer of juvenile offenders for adult prosecution provides the nexus between the more deterministic and rehabilitative premises of the juvenile court and the free will and punishment assumptions of the adult criminal justice system. Mechanisms to prosecute some juveniles as adults provide a safety valve that permit the expiatory sacrifice of some youths, quiet political and public clamor about serious youth crime, and enable legislators to avoid otherwise irresistible pressures to lower further the maximum age of juvenile court jurisdiction. Waiver laws attempt to resolve fundamental crime control issues, reconcile the conflicted impulses engendered when the child is a criminal and the criminal is a child, and harmonize cultural contradictions between adolescent immaturity and criminal responsibility.

Since the mid-1980s, public frustration with crime, fear of youth violence, and the racial characteristics of violent young offenders have fueled a desire to "get tough" and provided political impetus to prosecute larger numbers of youths as adults. Some of these initiatives simplify transfer of young offenders to criminal courts by expediting judicial waiver, by excluding certain categories of offenses from juvenile court jurisdiction, or by allowing prosecutors directly to charge youths as adults. The offense exclusion and "direct file" approaches de-emphasize rehabilitation and individualized consideration of the offender, and instead stress youth's age and offenses, personal and justice system accountability, and punishment.

Every jurisdiction uses one or more statutory approaches to prosecute some juveniles as adults. Although technical and administrative details of states' transfer laws vary considerably, judicial waiver, legislative offense exclusion, and prosecutorial choice of forum represent the three generic approaches. They represent different ways to identify which serious young offenders to try as adults, emphasize a different balance of sentencing policy values, rely upon different organizational actors or administrative processes, and elicit different information to determine whether to try and sentence particular young offenders as adults or as children. These strategies allocate to different branches of governmentjudicial, executive, or legislativethe decision whether to try a youth as a criminal or as a delinquent.

Judicial waiver represents the most common transfer strategy. A juvenile court judge may waive jurisdiction on a discretionary basis after conducting a hearing to determine whether a youth is "amenable to treatment" or poses a threat to the public. These assessments reflect the traditional individualized sentencing discretion characteristic of juvenile courts.

Legislative offense exclusion frequently supplements judicial waiver provisions. This approach emphasizes the seriousness of the offense and reflects the retributive values of the criminal law. Because legislatures create juvenile courts, they freely can define their jurisdiction to exclude youths from juvenile court based on their age and offenses. A number of states, for example, exclude youths sixteen or older and charged with first-degree murder from juvenile court jurisdiction. Legislative line-drawing that sets the maximum age of juvenile court jurisdiction at fifteen or sixteen years of age, below the general eighteen-year-old age of majority, results in the criminal prosecution of the largest numbers of chronological juveniles.

Prosecutorial waiver or "direct file" constitutes the third method by which about ten states remove some young offenders from the juvenile justice system. With this strategy, juvenile and criminal courts share concurrent jurisdiction over certain ages and offenses, typically older youths and serious crimes, and a prosecutor decides in which forum to try the case.

Each type of waiver strategy has supporters and critics. Proponents of judicial waiver endorse juvenile courts' rehabilitative philosophy and argue that individualized decisions provide an appropriate balance of flexibility and severity. Critics object that judges lack valid or reliable clinical tools with which to accurately assess amenability to treatment or predict dangerousness, and that their exercises of standardless discretion results in abuses and inequalities. Proponents of offense exclusion favor just deserts sentencing policies, advocate sanctions based on relatively objective factors such as offense seriousness and criminal history, and value consistency, uniformity, and equality in the handling of similarly situated offenders. Critics question whether legislators can remove discretion without making the process rigid and over-inclusive, or simply delegating sentencing discretion to prosecutors who manipulate their charging decisions. Proponents of prosecutorial waiver claim that prosecutors can act as more neutral, balanced and objective gatekeepers than either "soft" judges or "get tough" legislators. Critics observe that prosecutors succumb to political pressures, exercise their discretion just as subjectively as do judges, and introduce extensive geographic variability into the justice process.

Judicial waiver and individualized sentencing

From the juvenile court's inception, judges could deny some young offenders its protective jurisdiction and transfer them to adult courts. Judicial waiver reflects juvenile courts' traditional offender-oriented approach to decide whether to treat a youth as a juvenile or to punish him as an adult. In Kent v. United States (1966), the U.S. Supreme Court required juvenile court judges to conduct a formal waiver hearing and to provide some procedural protections. Subsequently, in Breed v. Jones (1975), the Court applied the double jeopardy clause of the fifth amendment to delinquency convictions and required states to decide whether to try and sentence a youth as a juvenile or as an adult before proceeding to trial on the merits of the charge.

Kent and Breed provided the formal procedural framework within which judges make waiver sentencing decisions. But the substantive bases of waiver decisions pose the principal difficulty. Most states' waiver statutes allow judges to transfer jurisdiction based on their assessment of a youth's "amenability to treatment." The Court in Kent, for example, appended to its opinion a list of substantive criteria that juvenile court judges might consider. States' judicial decisions and waiver statutes specify "amenability" criteria with varying degrees of precision and frequently incorporate the list of Kent factors. Although some states limit judicial waiver to felony offenses and establish a minimum age for adult prosecution, other states provide neither offense nor minimum age restrictions.

In practice, judges appear to assess a youth's amenability to treatment and dangerousness by focusing on three sets of variables. The first consists of a youth's age and the length of time remaining within juvenile court jurisdiction. Juvenile court judges waive older youths more readily than younger offenders. A youth's age in relation to the maximum dispositional jurisdiction limits juvenile courts' sanctioning powers and provides the impetus to waive older juveniles if the seriousness of the offense deserves a much longer sentence than a juvenile court can impose. A second constellation of "amenability" factors include a youth's treatment prognosis as reflected in clinical evaluations and prior correctional interventions. Once a youth exhausts available juvenile correctional resources, transfer becomes increasingly more likely. Finally, judges assess a youth's dangerousness based on the seriousness of the present offense, whether the youth used a weapon, and the length of the prior record. Balancing dangerousness factors entails a trade-off between offense seriousness and offender persistence.

Judicial waiver criteria framed in terms of amenability to treatment or dangerousness give judges broad discretion. Long lists of factors, such as those appended in Kent, do not provide judges with adequate guidance, serve to reinforce their discretion, and allow them selectively to emphasize one variable or another to justify any decision. The subjective nature of waiver decisions, the absence of effective guidelines, and the lack of objective indicators or scientific tools with which to classify youths allows judges to make unequal and disparate rulings. Empirical evaluations provide compelling evidence that judges apply waiver statutes in an arbitrary, capricious, and even discriminatory manner. Different states' rates of judicial waiver for similar offenders vary considerably. Even within a single jurisdiction, judges do not interpret or apply waiver statutes consistently from county to county or from court to court. Research in several states report a contextual pattern of "justice by geography"where youths lived, rather than what they did, determined their juvenile or adult status. Even within a single urban county, various judges in the same court decide cases of similarly situated offenders differently. A youth's race also affects waiver decisions. Studies consistently report that judges transfer minority juveniles at a higher rate than they do similarly situated white offenders. Differences in judicial philosophies, the locale of a waiver hearing, or a youth's race explain as much of the variance in transfer decisions as do a youth's offense or personal characteristics. Because assessments of "amenability" are so indeterminate, appellate courts give enormous deference to juvenile court judges' discretionary decisions.

Legislative offense exclusion and prosecutors' choice of forum

Legislative offense exclusion simply removes certain offenses from juvenile court jurisdictionyouths charged with those crimes are "automatic adults." Concurrent jurisdiction "direct file" laws grant to prosecutors the power to choose whether to charge a youth accused of a specified offense in either juvenile or criminal court without justifying that decision in a judicial hearing or with a formal record. Youths have no constitutional right to a juvenile court. State legislatures create juvenile courts and define their jurisdiction, powers, and purposes in many different ways. What they create, they also may modify or take away. States currently set juvenile courts' maximum age jurisdiction at seventeen, sixteen, or fifteen years old as a matter of state policy and without constitutional infirmity. If a legislature defines juvenile court jurisdiction to include only persons below a jurisdictional age and whom prosecutors charge with a nonexcluded offense, then by statutory definition all other chronological juveniles are adult criminal defendants.

Excluded youths tried in criminal courts have challenged their "automatic adulthood" as a denial of due process. Because courts decline to review prosecutors' discretionary charging decisions, excluded youths object that they do not receive the procedural safeguards required by Kent. Youths also contend that exclusion based on the offense charged constitutes an arbitrary legislative classification that violates equal protection. In United States v. Bland (1972), the leading case on the validity of legislative offense exclusion statutes, the court declined to review prosecutorial decisions because the constitutional separation of powers denies the judicial branch the power to compel or control the executive branch in essentially discretionary matters. In the absence of invidious discrimination on the basis of race, religion, or the like, a prosecutor's decisions about whether and whom to charge and with what remain beyond judicial review. Youths also have argued that offense-exclusion laws create an arbitrary and irrational statutory distinctioncriminal or delinquent statusbased on serious or minor offenses that violates equal protection. Courts uniformly reject such claims, noting that classification on the basis of offenses involves neither an inherently suspect class nor an invidious discrimination, and the loss of juvenile court treatment does not infringe any fundamental right.

Pure prosecutorial waiver statutes create concurrent jurisdiction in juvenile and criminal courts for certain offenses and give prosecutors discretion to charge youths of certain ages with the same offense in either forum. Unlike offense-exclusion where charges only for certain offenses can result in criminal prosecution, direct file legislation gives prosecutors greater latitude to choose the forum. Essentially, the prosecutor makes two types of decisions: whether probable cause exists to believe that the youth committed a particular offense and, if that offense is one for which concurrent jurisdiction exists, whether to charge the youth in either juvenile or criminal court. Although youths have challenged the validity of direct file laws that delegate to prosecutors discretion to choose a youth's juvenile or criminal status, appellate courts invoke the rationale of Bland and reject their claims.

Youth crime and "get tough" politics

The "baby boom" escalation in youth crime that began in the mid-1960s and peaked in the late 1970s provided a strong political impetus for "get tough" criminal sentencing and waiver policies. Beginning in the 1970s, juvenile waiver policies began to shift from rehabilitation to retribution, from offender to offense, from "amenability" to "public safety," and from the judicial to the legislative or executive branches. These statutory changes coincided with escalating youth crime rates and violence in the late 1970s and again in the late 1980s and early 1990s, and with public and political perception of youth crime primarily as an urban black male phenomenon. Two aspects of youth crime and violence have special relevance for understanding changes in waiver laws during the 1980s and 1990s. Since the mid-1960s, police have arrested black juveniles for all violent offensesmurder, rape, robbery, and assaultat a rate about five times greater than that of white youths, and for homicide at a rate more than seven times that of white youths. Secondly, while the number of homicide deaths that juveniles caused by means other than firearms fluctuated within a "normal range" of about plus or minus 10 percent during the 1980s and early 1990s, the number of deaths that juveniles caused with firearms quadrupled. Because of the disproportional involvement of black youths in violence and homicide, both as perpetrators and as victims, almost all of these "excess" homicides involving guns occurred within the urban, young black male population as a by-product of the "crack cocaine" epidemic. The intersection of race, guns, and homicide fanned a public "panic" and encouraged politicians to adopt "get tough" waiver policies.

The "crackdown" on youth crime of the early 1990s culminated the politicization of crime and waiver policies that began several decades earlier. In the 1960s, the civil rights movement created divisions within the Democratic Party between racial and social policy liberals and conservatives, northerners and southerners. Republican politicians seized crime control, affirmative action, and public welfare as racially tinged "wedge issues" with which to distinguish themselves from Democrats in order to woo southern white voters. For the first time, crime policies became a central issue in partisan politics. During the 1960s, conservative Republicans decried "crime in the streets" and advocated "law and order" in response to rising "baby boom" crime rates, civil rights marches and antiwar protests, and urban and campus turmoil. Since the 1960s, politicians' fear of being labeled by their opponents as "soft-on-crime" has led to a constant ratcheting-up of punitiveness as public officials avoid thoughtful discussions of complex crime policy issues in an era of thirty-second commercials. Efforts to "get tough" have supported a succession of "wars" on crime, drugs, and juveniles, longer criminal sentences, increased prison populations, and disproportional incarceration of racial minority offenders. The mass media depict and the public perceive the crime problem and juvenile courts' clientele primarily as poor, urban black males. Politicians manipulate and exploit these racially tinged perceptions for political advantage with demagogic pledges to "crack down" on youth crime, which has become a code word for young black males.

Legislative changes in waiver strategies

States made relatively limited use of offensebased strategies until Kent required a judicial waiver hearing and thereby provided the impetus for more streamlined and efficient transfer alternatives. A few states long had excluded from their juvenile courts older youths charged with capital offenses or crimes punishable by life imprisonment, such as murder. Some states also excluded youths charged with other serious crimes such as rape or armed robbery. But, reflecting the influences of "just deserts" jurisprudence, criminal career research, and "get tough" politics, two distinct legislative trends emerged between the 1970s and the early 1990s. First, more states excluded at least some offenses from their juvenile courts' jurisdiction, lowered the ages of juveniles' eligibility for criminal prosecution, and increased the numbers of offenses for which states may prosecute youths as adults. Second, the number of states that allow prosecutors, rather than judges, to select the forum via concurrent jurisdiction increased as did the offenses for which prosecutors may transfer youths.

A compilation and analysis of states' waiver laws in 1986 reported that eighteen states excluded at least some offenses from their juvenile courts' jurisdiction, typically capital crimes or murder by youths sixteen or older. One statutory compilation a decade later reported that twenty-six states excluded some offenses from their juvenile courts' jurisdiction, a 45 percent increase in less than a decade. A second statutory compilation in 1995 that included judicially waived youths previously convicted as adults in its excluded offense classification reported that thirty-eight states excluded at least some offenders from juvenile court jurisdiction. A third compilation that compared waiver statutes in 1979 with those in 1995 reported that during that period, eight additional states joined the excludedoffense ranks, a 35 percent increase. During the 19791995 period, almost half of the states also lowered the age of eligibility for adult prosecution and expanded the number of excluded offenses. Still another statutory survey reported that between 1992 and 1995, twenty-four states added some crimes to their excluded offense lists and six states lowered the minimum ages for some or all of their excluded offenses.

Transfer back or "reverse waiver"

In order to restore some flexibility to a prosecutor-dominated waiver process and to allow for appropriate dispositions of some "amenable" younger offenders, many states allow judges to "reverse waive" or "transfer back" to juvenile court cases that originated in criminal court either as a result of excluded offense or prosecutorial direct file decisions. About half of the prosecutor direct file and excluded offense jurisdictions allow a criminal court judge either to return a youth to juvenile court for trial or sentencing, or to impose a juvenile or youthful offender sentence in lieu of an adult criminal sentence. In some states, offense exclusion or direct file laws that place a youth initially in criminal court create a presumption of unfitness and shift the burden of proof to the juvenile to demonstrate why he should be returned to juvenile court for trial or disposition. In other excluded offense jurisdictions, the prosecutor may make a "reverse waiver" decision. In most states, however, a criminal court judge makes the "transfer back" decision to sentence a youth as a juvenile under provisions that recreate Kent -style proceedings. An evaluation of reverse waiver decisions reported that criminal court judges transferred back significantly more younger offenders, those who had fewer prior convictions and less previous exposure to juvenile correctional services, and those whom clinicians identified as "amenable to treatment." These reverse waiver findings correspond to comparable research on juvenile court waiver decisions, which report that judges typically transferred older youths, those with prior juvenile correctional experiences, and those whom clinicians deemed "unamenable to treatment." In short, the limited evidence on reverse waiver suggest that it closely replicates juvenile court judicial waiver.

Criminal court careers of waived juveniles

Juvenile and criminal courts' sentencing practices often work at cross-purposes and frustrate rather than harmonize the social control of serious and chronic young offenders as they move between the two systems. Until the recent amendments of waiver laws, criminal courts typically sentenced chronic younger offenders more leniently than they did older offenders because of the latter's cumulative adult prior records. The lenient responses to many young career offenders when they first appear in criminal courts occur because the criteria for removal from juvenile court and adult criminal sentencing practices often lack congruence. The "punishment gap" occurs because waiver decisions involve two, somewhat different but overlapping populations of young offendersolder chronic delinquent offenders currently charged with a property crime and violent youths, some of whom also are persistent offenders.

Criminal courts respond differently to chronic offenders currently charged with a property crimes and those charged with violence. Prior to 1993, juvenile court judges transferred the largest plurality of youths for property offenses (45 percent), rather than for crimes against the person (34 percent). The nature of the offenses for which juvenile courts transferred juveniles and their relative youthfulness compared with adult defendants affected their first criminal court sentences. Although several studies of dispositions of youths tried as adults report substantial variation in sentencing practices, a policy of leniency often prevailed. Earlier studies reported that urban criminal courts incarcerated younger offenders at a lower rate than they did older offenders, that youthful violent offenders received shorter sentences than did older violent offenders, and that for about two years after becoming adults, youths benefited from informal, lenient sentencing policies. A nationwide study of judicially waived youths sentenced as adults found that criminal courts fined or placed the majority (54 percent) of transferred juveniles on probation. Even among those confined, 40 percent received maximum sentences of one year or less and only about one-quarter (28 percent) received sentences of five years or more. More recent research reports that juvenile court judges continue to waive primarily older chronic offenders charged with a property crime like burglary rather than with a violent crime, and criminal courts subsequently fined or placed on probation most transferred juveniles. Moreover, criminal court judges typically sentenced chronic property offenders convicted as adult first-time offenders more leniently than adults and often for shorter sentences than juvenile court judges imposed on comparable delinquents.

Unlike the criminal court sentences of chronic property offenders, the transfer decisions have profound consequences for waived violent youths. A study of the dispositions received by waived and retained youths whom prosecutors charged with a violent offense and who had a prior felony conviction reported that criminal courts incarcerated over 90 percent and imposed sentences five times longer than those given to youths with similar offense characteristics but who remained in juvenile court. Another study compared young robbery and burglary offenders in New York, whose excluded offenses placed them in criminal court, with a similar sample of fifteen- and sixteen-year-old youths in matched counties in New Jersey whose age and offenses placed them in juvenile courts. The New York criminal courts convicted and incarcerated a somewhat larger proportion of youths, but both justice systems imposed sentences of comparable length. Although burglary offenders in both jurisdictions recidivated at about the same rate, adult robbery offenders in New York reoffended more quickly and at a higher rate than did the juveniles in New Jersey. A study in Florida compared youths whom prosecutors direct-filed into criminal court with a matched sample of youths retained in juvenile court and found that by all measures, the youths whom prosecutors tried as adults did worsethey committed additional and more serious offenses more quickly than did those youths retained in juvenile jurisdiction. Several studies consistently indicate that criminal courts imprison more often and impose longer sentences on violent youths tried as adults than do juvenile court judges.

Because of differences in rates and types of offending by race, laws that target violent offenses indirectly have the effect of identifying larger proportions of black juveniles than white youths and exposing them to more severe adult penal consequences. As the number of waived cases increased from 1988 onward, and the proportion of violent offenses among waived cases increased, the percentage of black juveniles judicially waived to criminal court increased from 43 percent to 50 percent of all transferred youths. Although juvenile courts waived an equal proportion of black and white youths (49 percent) in 1989, by 1993 the proportion of waived white youths decreased to 45 percent while black youths comprised 52 percent of all waived juveniles.

The recent changes in waiver laws increase the numbers of chronological juveniles charged, tried, and sentenced in criminal courts. Despite legislative efforts to transfer more youths to criminal courts, surprisingly few analysts compare the rates of conviction or sentences of waived or excluded youths with those of retained juveniles or similar adult defendants. The few studies of waived juveniles' conviction rates in criminal courts suggest that criminal courts convict them at higher rates than do juvenile courts and perhaps more readily than they do other adult defendants. These higher conviction rates probably reflect prior prosecutorial and judicial screening decisions and the sample selection bias of youths waived to criminal court. A study in New York reports that criminal courts convicted youths charged with robbery at a significantly higher rate than did juvenile courts. A study in Hennepin County, Minnesota, reported higher rates of conviction and some type of incarceration for waived youths in criminal courts than for those retained in juvenile courts. A study of waived youths in seven states found that conviction rates varied from state to state and by type of offense, but that criminal courts convicted waived juveniles at about the same rates as other young adult offenders. Adult criminal courts sentence waived young offenders primarily on the basis of the seriousness of their present offense. The emphasis on the present offense reflects ordinary criminal sentencing practices as well as the failure systematically to include juvenile prior convictions in young adults' criminal histories. Criminal courts often sentence violent young offenders to substantial terms of imprisonment, including "life without parole" or the death penalty. Many studies report that waived violent youths receive sentences four or more times longer than do their retained juvenile counterparts. By contrast, waived chronic property offenders often receive more lenient sentences as adult first offenders than do their retained juvenile counterparts.

Youthfulness, proportional punishment, and the death penalty

Waiver of youths to criminal courts for sentencing as adults implicates legal and cultural understandings of juveniles' criminal responsibility. Waiver laws that exclude capital offenses from juvenile court jurisdiction expose some youths to the possibility of execution for offenses they committed as juveniles. Imposing sentences of "life without parole" on waived youths for crimes they committed at thirteen or fourteen years of age, and executing them for crimes they committed at sixteen or seventeen years of age, challenges the social construction of adolescence and the idea that juveniles are less criminally responsible than adults.

Both historically and at present, some states have executed people for crimes committed while they were children. States have executed nearly three hundred people for the crimes they committed as chronological juveniles, and courts currently impose about 2 percent of death penalties on minors. Since the reinitiation of capital punishment in 1973, states have executed nine offenders for crimes they committed as juveniles, six since 1990. Judges have pronounced death sentences on 140 offenders for crimes committed as juveniles, or 2.6 percent of all capital sentences.

The Supreme Court considered the culpability of young offenders in the context of death penalty litigation on several occasions in the 1980s. In Thompson v. Oklahoma (1988), the Court pondered whether a state violated the Eighth Amendment prohibition on "cruel and unusual punishments" by executing an offender for a heinous murder he committed when he was fifteen years old. A plurality of the Court overturned the capital sentence and concluded that "a young person is not capable of acting with the degree of culpability [as an adult] that can justify the ultimate penalty." The following year in Stanford v. Kentucky (1989), a different plurality of the Court upheld the death penalty for murders committed by juveniles aged sixteen or seventeen years at the time of their offense. Of the thirty-eight states and the federal government that authorize the death penalty, twenty-one allow the state to execute a youth for crimes committed at age sixteen and an additional four permit executions for crimes committed at age seventeen.

The Supreme Court gives even greater constitutional deference to states' sentencing policy decisions outside of the context of capital punishment, upholds mandatory life sentences even for drug crimes, and eschews proportionality analyses. The Court's deference to states' criminal policy judgments grants state legislatures virtually unreviewable authority to prescribe penalties for crimes. The Court's reluctance to limit states' criminal sentencing authority has special significance for juveniles tried as adults. "Sound-bites" of contemporary politics"adult crime, adult time," or "old enough to do the crime, old enough to do the time"convey current youth sentencing policy. Many of the most serious crimes for which criminal courts convict youths carry substantial sentences, mandatory minima, or even life without parole. Exclusion statutes without minimum age restrictions expose even very young offenders to such harsh penalties. The Federal Sentencing Guidelines explicitly reject "youthfulness" as a justification to mitigate sentences outside of the guidelines range, although several states' sentencing laws recognize "youthfulness" as a mitigating factor. However, statutes that include youthfulness among a number of aggravating-mitigating factors simply treat it as one element to weigh with other factors when sentencing. In most states, whether a judge treats youthfulness as a mitigating factor rests within her sound discretion. Appellate courts regularly affirm mandatory sentences of life without parole for thirteen-year-old juveniles convicted as adults.

As a result of recent changes in waiver laws, criminal courts sentence increasing numbers of youths to adult correctional facilities. Unfortunately, we lack reliable data on the number of imprisoned juveniles because most states do not classify young inmates on the basis of the process that brought them to prison. Many youths who committed their crimes as chronological juveniles may be adults by the time courts have waived, convicted, and sentenced them to prison. Because of the recency of many changes in waiver statutes, correctional administrators have not yet fully experienced the population or programming implications of these policy changes.

A 1991 survey of state correctional administrators reported that convicts aged seventeen or younger comprised less than one percent of 712,000 prisoners, but did not distinguish between waived or excluded youths and those in states in which juvenile court jurisdiction ended at fifteen or sixteen years of age. Another survey reported that offenders younger than eighteen years of age comprised about 2 percent of new commitments to prisons, and that about three-quarters of those youths were seventeen at the time of their confinement. In 1993, criminal courts sentenced about 5,200 youths aged seventeen or younger to adult prisons.

Recall that criminal courts sentenced juveniles waived for property and for violent crimes differently as adults, and that recent waiver legislative amendments increasingly target violent youths. As a result, among persons sentenced to prison, a substantially larger proportion of younger offenders are committed for violent crimes than is true for adult prison commitments. For example, of youths under age eighteen sentenced to prison, 50 percent had been convicted of violent crimes, compared with 29 percent of adults admitted to prison. The percentages of youths committed to prison who had been convicted of violent crimes exceeded the proportions for sentenced adults for murder, robbery, and assault. Because of the disparities in rates of violent offending by race, criminal courts sentenced a majority of black youths (54 percent) to prison for violent offenses and a majority of white youths (57 percent) for property crimes. Because of the differences in sentence lengths imposed for violent and property crimes, the racial disparities in prison inmate populations will cumulate.

The infusion of juvenile offenders poses a challenge to corrections officials to develop age-appropriate programs and conditions of confinement for younger inmates. Correctional administrators anticipate increased pressure on already overburdened prison systems. Subject to variations in state laws and available facilities, correctional options for handling juveniles include straight adult incarceration with minimal differentiation between juveniles and adults other than routine inmate classification; graduated incarceration in which youths begin their sentences in a juvenile or separate adult facility and then serve the remainder of their sentence in the adult facility; or age-segregated incarceration either in separate facilities within the prison or in separate youth facilities for younger adults. Analyses of correctional practices in the mid-1990s reported that nearly all states confine juveniles sentenced as adults in adult correctional facilities either with younger adult offenders or in the general population if the juvenile is of a certain age, for example, sixteen. In 1994, thirty-six states dispersed young inmates with adult inmates, nine states housed younger inmates with those aged eighteen to twenty-one, and only six states segregated younger inmates from older prisoners either in juvenile training schools until they reached the age of majority or in age-segregated units within an adult prison. Prison officials generally regard juveniles convicted in criminal courts as adults and employ the same policies, programs, and conditions of confinement for them as for other adult inmates.

The influx of younger offenders poses management, programming, and control challenges for correctional administrators. Young peoples' dietary and exercise needs differ from those of older inmates. Younger inmates may engage in more institutional misconduct, and management techniques appropriate for adults may be less effective when applied to juveniles. Evaluations of the prison adjustment of serious or violent youthful offenders are mixed. A few states report that young offenders pose special management problems or commit more disciplinary infractions than do older inmates, while other states report few differences. One systematic study of the prison adjustment of young offenders compared a sample of waived youths convicted of violent crimes committed before the age of seventeen with a matched sample of incarcerated inmates aged seventeen to twenty-one at the time of their offenses. The waived violent youths adapted less well, experienced more difficulty adjusting to institutional life, accumulated more extensive disciplinary histories, and earned less good time. Juveniles in adult facilities are more likely to be victims of violent attacks and sexual assaults and more likely to commit suicide that those confined in juvenile facilities.


Since 1992, nearly half the states have expanded their lists of excluded offenses, lowered the ages of eligibility for exclusion from sixteen to fourteen or thirteen years of age, or granted prosecutors more authority to transfer cases to criminal court. Increasing numbers of younger offenders charged with serious crimes find themselves in criminal court. Excluded offense and direct file laws symbolize a fundamental change in juvenile justice jurisprudence and policies from rehabilitation to retribution. The overarching themes of the various legislative amendments include a shift from individualized justice to just deserts, from treatment to punishment, and from immature delinquent to responsible criminal. These trends in waiver policy reflect a legal reformulation of the social construction of "youth" from innocent, immature, and dependent children to responsible, autonomous, and mature offenders. "Get tough" criminal sentencing policies provide no formal recognition of youthfulness as a mitigating factor. Once youths make the transition to criminal court, judges sentence them as if they are adults, impose the same sentences, send them to the same prisons, and even inflict capital punishment on them for the crimes they committed as children.

Barry C. Feld

See also Juvenile and Youth Gangs; Juvenile Justice: History and Philosophy; Juvenile Justice: Community Treatment; Juvenile Justice: Institutions; Juvenile Justice: Juvenile Court; Juvenile Status Offenders; Juvenile Violent Offenders; Police: Handling of Juveniles; Prediction of Crime and Recidivism; Prevention: Juveniles as Potential Offenders; Schools and Crime.


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Breed v. Jones, 421 U.S. 519 (1975).

Kent v. United States, 383 U.S. 541 (1966).

Stanford v. Kentucky, 492 U.S. 361 (1989).

Thompson v. Oklahoma, 486 U.S. 815 (1988).

United States v. Bland, 472 F.2d 1329 (D.C. Cir. 1972), cert. denied, 412 U.S. 909 (1973).