Juvenile Waiver

by

Cassidy Haigh, Gissel Perez, Lora Levett

• LAST MODIFIED: 20 August 2024
• DOI: 10.1093/obo/9780195396607-0334

Introduction

Since the 1980s, the United States has implemented policies designed to expand the transfer of juvenile defendants to the adult criminal court system, increasing the likelihood that they will be tried and sentenced as adults. As such, scholars have devoted considerable resources to investigating the legal landscape of waiver, including exploration of the various mechanisms by which a juvenile can be transferred or tried directly in adult criminal court (i.e., prosecutorial waiver, judicial waiver, or legislative mandate) and legal and non-legal factors that influence whether a juvenile will be waived. Scholarship has also examined the theoretical underpinnings of the effectiveness of waiver as a deterrent, examining outcomes or consequences associated with waiver versus retention in or decertification to the juvenile justice system. Other research has examined how these variables may be moderated by characteristics of the offender (e.g., race and ethnicity). Further, the research has also focused on examining public perceptions of waiver, both in the context of general perceptions of juveniles and stereotypical perceptions of juvenile defendants and in the context of juror and jury decision making in juvenile waiver cases. In addition to examining antecedents, consequences, and public perceptions of waiver, researchers have also suggested several reforms designed to improve outcomes for juveniles in the criminal justice system.

Historical/Legal Context

Laws regarding juvenile waiver have changed over time, with states enacting laws making it easier to try juveniles in the criminal justice system throughout the 1990s and early 2000s (Griffin, et al. 2011, cited under Transfer Mechanisms: General Review and Decertification). Currently, all fifty states include mechanisms to try juveniles in the adult criminal justice system. The articles in this section examine juvenile waiver trends and this legal context. DeJong and Merrill 2001 is a law review that details juvenile waiver laws in the United States and the history of the juvenile court. Feld 2001 examines the history of judicial waivers, individualized sentencing, legislative offense exclusion, “direct file,” offense exclusion jurisprudence, youth violence, and sentencing policies. In addition, the authors examine recent changes to specific laws. Similarly, Ruddell, et al. 1998 examines recent trends and issues regarding juvenile transfer legislation, exploring transfer in Canada and the United States. White, et al. 1999 examines the history of transfer laws, specifically in Florida. Carroll 2009 explores the implications of the 2000 U.S. Supreme Court decision in Apprendi v. New Jersey on standards for transfer. Sellers and Arrigo 2009 explores the ethical reasoning underlying the decisions in court cases concerning automatic juvenile transfer.

• Carroll, J. E. 2009. Rethinking the constitutional criminal procedure of juvenile transfer hearings: Apprendi, adult punishment, and adult process. Hastings Law Journal 61.1: 175–232.

  The author examines the implications of Apprendi v. New Jersey (2000). Apprendi requires any fact, other than a prior conviction, that increases the penalty for a crime above the statutory maximum be presented to a jury and established beyond a reasonable doubt. Carroll argues that courts should apply Apprendi to juvenile transfer proceedings because transferring juveniles to the adult court system exposes juveniles to sentences higher than those they would face in juvenile court.

• DeJong, C., and E. S. Merrill. 2001. Getting “tough on crime”: Juvenile waiver and the criminal court. Ohio Northern University Law Review 27:175–196.

  The authors provide a discussion of the history of waiver law in the United States. They explore possible dangers of increased use of waiver, including the abandonment of rehabilitation, loss of individualized justice, no decrease in recidivism, and sentencing juveniles to death. Possible solutions and directions for change in juvenile justice are discussed.

• Feld, B. C. 2001. Race, youth violence, and the changing jurisprudence of waiver. Behavioral Sciences and the Law 19:3–22.

  DOI: 10.1002/bsl.427

  An exploration of the legal history and jurisprudential theory of legislative offense-exclusion and prosecutorial waiver laws. Feld examines the intertwined history of political movements, research on delinquency and criminal careers, and the evolution of laws regarding juvenile waiver and sentencing.

• Ruddell, R., L. Mays, and D. M. Giever. 1998. Transferring juveniles to adult courts: Recent trends and issues in Canada and the United States. Juvenile and Family Court Journal 49:1–15.  

  DOI: 10.1111/j.1755-6988.1998.tb01481.x

  This research reviews juvenile waiver trends in the United States and Canada from 1986 to 1994. Specifically, researchers examine if the majority of youths in each country were transferred due to violent or non-violent offenses and the trend of total number of youths transferred. Differences and similarities in the juvenile justice systems and transfer legislation between both countries are discussed.

• Sellers, B. G., and B. A. Arrigo. 2009. Adolescent transfer, developmental maturity, and adjudicative competence: An ethical and justice policy inquiry. The Journal of Criminal Law and Criminology 99.2: 435–488.

  This is a qualitative study that uses textual analysis to examine the moral philosophy underlying court opinions regarding automatic transfer, developmental maturity, and competency to stand trial.

• White, H. G., C. E. Frazier, and L. Lanza-Kaduce. 1999. A socio-legal history of Florida’s juvenile transfer reforms. University of Florida Journal of Law and Public Policy 10:249–276.

  This article provides a socio-legal history of the transfer laws in Florida. It discusses recent reforms and transfer provisions from the 1970s and examines the evolution of transfer in Florida, elucidating the underlying motivations behind transfer reforms to give a better picture of the interaction between instrumental, expressive, and institutional or systems factors and legal reform generally.