Before establishment of the first juvenile courts in United States, majority of child offenders were prosecuted as adults in accordance with English law tradition (Greenwood, 1986). At that time Common law presumed children under the age of 7 years to incapable to commit a crime while those aged 7-16 were taken to be responsible for their own acts. However, the court had to show that the child was capable of distinguishing between good and evil, beyond reasonable doubt (Males & Macallair, 2000).
It was not until 1899, that US saw the first juvenile court in Chicago. Juvenile courts in the early times emphasized benevolence, decriminalization as well as diversion even though they did not offer youths with any particular rights (Juszkiewitcz, 2000). These early courts were seeking only to determine the causes of delinquency as well as a find a treatment that could restore a wayward child back to track (Fagan ea al. , 2004). As far as the rights of juvenile offenders is concerned, the 20th century marked the turning point, through the ruling in Kent v.
US (1966) (383 U. S. 541). Under the ruling the US Supreme Court juveniles were guaranteed to a hearing prior to being tried as adults (a ‘waiver’ hearing) (Fritsch & Hemmens, 1995). Another development was through the decision in re Gault, 387 U. S. 1 (1967), as it established that under the Fourteenth Amendment, juveniles accused of crimes were entitled to be accorded many of the same due process rights as adults save for jury trial, transcript, or appellate review.
These rights under the Gault case included, right to timely notification of charges, the right to confront witnesses, the right against self-incrimination, as well as the right to counsel (Fritsch & Hemmens, 1995). Increase in youth violence in the 1980s, cynicism with the aptitude of the juvenile court to deal with aggressive juvenile offenders, and a get-tough-on-crime social environment led to an increase in the number of juveniles being “waived” or bound over to adult courts. Adult Courts were envisaged to be capable of handing out harsher and longer sentences than juvenile courts (Fritsch & Hemmens, 1995).
However the period between 1994 and 2000 indicated continuance of juveniles to commit inconsistent various property as well as violent crimes, with decline in the arrest rate for juvenile offenders for most crimes. Waiver to Adult Court States have in the last 20 years extensively expanded legislation allowing for prosecution of juveniles in adult criminal court (Steiner et al. 2006). The attitude has seen permission being granted for juveniles to be transferred at lower ages and for more offences.
Today nearly, every State including the District of Colombia permits for juvenile prosecution in criminal court via one or more transfer mechanisms. The more widely adopted mechanism is judicial waiver, which gives juvenile court judges discretion to waive juvenile cases to adult criminal court. A juvenile may be waived to adult court also through direct file, which offers prosecutorial discretion to file criminal charges against juveniles directly in criminal court, and statutory exclusion, which mandates juvenile prosecution in adult court (Males & Macallair, 2000).
The extensive ratification of legislation increasing juvenile exposure to criminal prosecution is an express reaction to reported rise of juvenile violent crime in recent years. For instance the number of serious crimes, such as murder and aggravated assault, committed by juveniles increased 68 fold from 1988 to 1992. The spectacular growth in transfer legislation is based on the assertion that some offenses deserve criminal trial and some juveniles are beyond rehabilitation.
As a result, State legislation accentuating responsibility by violent juvenile offenders focuses on transferring serious, violent juvenile offenders as well as habitual offenders. Types of waiver Despite the fact that the procedural rules differ from state to state, the notion of a waiver is similar across the United States. A juvenile who is accused of a severe crime can, in certain conditions, be tried as an adult, in adult criminal court.
The minimum age that a juvenile can be waived to adult court varies from state to state, for instance in New Jersey, the minimum age for a juvenile to be considered for waiver is 14 (at the time the offense was committed). On the other hand, the types of crimes concerned in a waiver application are serious crimes, such as aggravated sexual assault, aggravated assault or criminal homicide. A juvenile may also be considered for waiver if there is a blueprint of past offenses that culminates to a conclusion that rehabilitation is not likely.
Whereas the state is concerned with protecting the interests of the public from further crimes of the juvenile, the defense must demonstrate that the chances of rehabilitation, outweighs the reasons for the waiver (Steiner et al. 2006). Judicial/discretionary This is the most common form of waiver. The decision to transfer the case to adult court is the discretion of the juvenile court. Mandatory waiver Under this waiver, accused juveniles are automatically waived depending on their age or nature of the crime committed for instance homicide. Statutory waiver
This involves automatic waiver based on the juvenile’s offence or prior record. The juvenile’s age does not matter under statutory waiver. Other forms of waiver includes presumptive waiver that calls upon the juvenile defendant to show in a convincing manner why he should not be waived. Conversely direct file waiver offers the prosecutor with the choice to file the case either in juvenile or adult criminal court. “Once an adult always an adult” waiver demands that if a juvenile has ever been tried as an adult, he or she must be tried as an adult in the future.
Another form of waiver even though it is not our concern, is the “Reverse” waiver. This kind of waiver refers to a case that is initially filed in adult court but is subsequently transferred to juvenile court (Juszkiewitcz, 2000). Recent studies show that an estimated 14,500 youths in the United States are housed in adult correctional facilities on any given day. Of these, about 9,100 are housed in local jails while 5,400 are in adult prisons Waiver to adult court and Recidivism rate Florida as a case study
Various studies indicate that juveniles sent to adult court normally recidivate at a higher rate than they do if they are sent to the juvenile justice system. Successive studies by Bishop and Frazier in Florida have analyzed what happens to youth referred to adult court-90 percent of whom are directly waived by prosecutors (Vincent & Schiraldi, 2000). A study they availed via the journal Crime and Delinquency illustrated that juveniles waived to criminal court in Florida were three times more likely to re-offend as opposed to those sent to the juvenile justice system.
Whereas some in the comparison juvenile detention group also re-offended, those waived to adult court had the likelihood to be re-arrested largely faster than those sent to juvenile detention, thus sinking their probability to be grounded in the society for rehabilitation. Out of those who perpetrated novel crimes, the juveniles who had formerly been tried as adults committed serious crimes two times the rate of those sent to juvenile court (Vincent & Schiraldi, 2000).
Through a 1997 research by the same authors, it was manifested that there were similar re-arrest rates for transferred and non-transferred “property offenders,” except that youths sent to prison and jail were still rearrested more quickly than their peers in the juvenile justice system, in addition to more serious offenses than property crimes. Because there are “similarly paired youth”-youth convicted of property offenses and other comparable crime categories-in both jail and deep-end juvenile detention reveals the randomness of prosecutorial transfer in Florida.
Youths in deep-end juvenile programs A report primed for the Office of Juvenile Justice and Delinquency Prevention in 1998, Bishop and Frazier carried studies with 50 juveniles sent to prison by Florida prosecutors, versus 50 sent to a state “maximum risk” juvenile detention facility. The study account indicated that the youths themselves acknowledged the rehabilitative forces of the juvenile justice system as opposed to the adult prison system (Myers, 2003).
Out the number of the sample sent to juvenile detention, 60 percent were optimistic that they would not re-offend, 30 percent said they were not sure whether they would re-offend, while 3 percent indicated that they had likelihood of re-offending (Myers, 2003). Out of the number expected not to re-offend, 90 percent of it articulated good juvenile justice programming as well as services, as being behind their rehabilitation. Of the whole number only one individual in juvenile detention said he was learning novel modes of perpetrating crime.
As such, the juvenile justice system reactions were devastatingly encouraging (Bayer & Pozen, 2005). Juvenile justice system is all about rehabilitation and counseling as the sample majority portrayed. They praised the place for having people to listen to one when he had something in mind. The officials in these facilities were seen to be understanding and helpful. On the other hand, 40 percent of the waived juveniles acknowledged that they were learning new modalities of crime commission. Majority of the sample indicated that the guards and staff in prisons were unresponsive, aggressive, and showed little care for them.
Only 30 percent of the juveniles in prison were optimistic not to re-offend. Not startlingly, those sent to prison by prosecutors responded in a devastatingly dejected and negative way (Bayer & Pozen, 2005). “When I was in juvenile programs, they were telling me that I am somebody and that I can change my ways, and get back on the right tracks. Here they tell me that I am nobody and I will never be anybody” (Vincent & Jason, 2000). “In the juvenile systems, the staff and I were real close. They wanted to help me.
They were hopeful for me. Here, they think I am nothing but a convict now” (Vincent & Jason, 2000). As shown majority of youths who are transferred to criminal courts are inclined to be those who are considered to pose severe risk to the public, have injured someone with a weapon or committed heinous crimes, and those with long juvenile records. However, a number of studies propose racial inequity in the application of waiver, with African American and Latino youths being disproportionately transferred to adult courts (Fagan ea al. , 2004).
Through a study carried out by Males M. and Macallair D. , (2000) it was found that minority youth offenders in California were much more likely to be waived to adult courts and sentenced to prison than whites were who committed related crimes. The study acknowledged that compared with white youths, minorities in California were 2. 8 times more probable to be arrested for violent crimes, 6. 2 times high chances to be tried in adult court and 7 times more likely to be sentenced to prison once they get there (Steiner et al.
2006). Crime Control Impact: Crime Rate Risks to juveniles in adult jails Studies show that juveniles send to adult courts face greater threats to their lives as well as future well-being after entering adult jail and prison systems (Males & Macallair, 2000). These well-documented perils concern both the youths who are send down in adult court as well as those who are simply being held in pretrial incarceration for offences of which they may later be acquitted (Vincent & Schiraldi, 2000).
A research carried out by Jeffrey Fagan illustrates that youths are five times more probable to report being a victim of rape when they held in an adult facility versus juvenile detention. The same report also demonstrates that juveniles in adult jails are also twice as likely to report beating by staff and a 50 percent likelihood of weapon attack. A Justice Department study conducted in 1981 indicated that the suicide tempo of juveniles in adult jails is higher by 7. 7 times compared to youth in juvenile detention centers (Juszkiewitcz, 2000).
The will of the people Whereas the existing data was primarily concerned with prosecutorial waiver to adult courts majority of Americans oppose changing federal law to allow for waiver of youth to adult court (Vincent & Schiraldi, 2000). Observation It is important that juvenile delinquency jurisdiction should have uniform application of 18 years of age in every State. In cases where juvenile offenders can effectively be sustained via the existing juvenile justice system there is no need of waiver (Bayer & Pozen, 2005), (Myers, 2003).
In exceptional occurrences, the most violent offenders cannot be rehabilitated within the juvenile system and should be transferred for adult prosecution. Nevertheless, the decision to waive should only be made by the juvenile offender or family court judge (Bayer & Pozen, 2005). Conclusion One reason juveniles are waived to adult court is the ability to give them much longer sentences for serious crimes, however upon release not only do they have a higher rate of recidivism, but also that recidivism occurs more rapidly than in controls who remain in the juvenile justice system (Myers, 2003).
From various researches as noted elsewhere it is true that waiver is not applied in a consistent and fair manner, for instance prosecutorial waiver in a racial community. In addition, from Florida’s case study it appears that adult correctional system are not well equipped to treat and guide juvenile offenders away from crime and return them to the society as productive citizens. Lastly but not the least, having seen the rate of recidivism with waived juveniles one questions the essence of waiver. Thus in actual fact it is a system that ought to be done away with.
Reference Bayer, P. , and Pozen, D. (2005). The Effectiveness of Juvenile Correctional Facilities: Public versus private management. Journal of Law and Economics, 48(2). Fagan, J. , Kupchik, A. , and Liberman, A. (2004). Be careful what you wish for: The comparative impacts of juvenile versus criminal court sanctions on recidivism among adolescent felony offenders. Columbia Law School, Law Research Paper No. 03-61 Fritsch, Eric, And Hemmens, Craig. (1995) “Juvenile Waiver in the United States 1979–1995: A Comparison and Analysis of State Waiver Statutes.
” Juvenile and Family Court Judges Journal 46: 17–35. Juszkiewitcz, J. 2000. Youth Crime/Adult Time: Is Justice Served? Washington, DC: Prepared by Pretrial Services Resource Center for the Building Blocks for Youth Initiative. Juvenile Justice, 1. Males, M. , and Macallair, D. 2000. The Color of Justice: An Analysis of Juvenile Adult Court Transfers in California. Washington, DC: Prepared by Justice Policy Institute for the Building Blocks for Youth Initiative. Myers, D. L. (2003). The recidivism of violent youths in juvenile and adult court: A consideration of selection bias.
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