10.8: Getting Tough- Initiatives for Punishment and Accountability
superpredator – youth so impulsively violent, remorseless, and have no respect for human life- led to widespread reform and more punitive approaches to juvenile crime and delinquency. This included more punitive sentences, lowering the age at which a juvenile could be tried as an adult, and loosening the provisions for trying juveniles in adult court. The motto “adult time for adult crime” drove accountability initiatives and get-tough campaigns. A youth was no longer seen as vulnerable minors in need of protection and treatment. Instead, the narrative changed and they were seen as violent monsters acting “with no conscience and no empathy”, a statement Hillary Clinton has publicly regretted saying.
Rethinking zero tolerance
Waiver and Adult Time
prosecutorial, legislative, and judicial waiver . The prosecutorial waiver also is referred to as “Direct File” and “Concurrent Jurisdiction.” With this waiver mechanism, the legislature grants a prosecutor the discretion to determine in which court to file charges against the juvenile. [2] The prosecutor, or district attorney, can choose to file charges in juvenile court or adult criminal court. This procedure does not require a transfer hearing, so the defense is not accorded the opportunity to present evidence in an attempt to avoid the transfer [3]
Legislative waiver , or statutory waiver, identifies certain offenses which have been mandated by state law to be excluded from juvenile court jurisdiction. It is utilized as a method to decrease or eliminate the discretionary powers of judges and prosecutors. For example, the number of state statutes specifies that violent felony offenses such as homicide, rape, and robbery, when committed by older adolescents, are automatically sent to adult criminal court.
In the News: Raising the Age and Raising the Bar
“Raise the Age” legislation passed in 2017, all minors on Rikers Island awaiting trial or otherwise, have to be moved out of the notorious New York City jail in October 2018. Rikers Island is famed for abuse, corruption, and violence and has begun the 10 years shut down a plan to close the scandal-ridden jail complex. The jail houses some 9,000 inmates, more than 2,000 who are juveniles. The plan is to reduce the jail population while moving the inmates to other facilities throughout New York’s boroughs.
https://www.wnycstudios.org/story/raise-age-new-york-minors-rikers
Judicial waiver affords the juvenile court judge the authority to transfer a case to adult criminal court. [5] There are three types of judicial waiver: discretionary, presumptive, and mandatory .
discretionary (regular) transfer allows a judge to transfer a juvenile from juvenile court to adult criminal court. [6] With this type of transfer, the burden of proof rests with the state and the prosecutor must confirm that the juvenile is not amenable to treatment. As discussed previously, in Kent v. United States (383 U.S. 541, 566-67 [1966]), the Supreme Court outlined threshold criteria that must be met before a court can consider waiving a case. These waiver statutes typically include a minimum age, the specified type of offense, a sufficiently serious prior record, or a combination of the three.
Presumptive waiver shifts the burden of proof from the State to the defendant. It is presumptive because it is presumed that it will occur unless the youth can meet the burden of proof and provide a justifiable reason to remain in juvenile court. If the youth is unable to show just cause or sufficient reason why the case should be tried in juvenile court, the case will be transferred and tried in adult court.
mandatory waiver. Mandatory waiver means that a juvenile judge must automatically transfer to adult court juvenile offenders who meet certain criteria, such as age and current offense. In these cases, the role of the judge is simply to confirm that the waiver criteria are met and then to transfer the case to adult court. Mandatory waiver attempts to remove all discretionary powers from the juvenile court judge in transfer proceedings. [7]
In addition to increasing transfer mechanisms, at least 13 states lowered the age of majority to 15, 16, and 17, which allowed the youth of these ages to be automatically tried in adult criminal courts. These were supposed to provide procedures that curbed only the worst of the worst offenders, however, these provisions increased the prosecution of all juvenile offenders and youth of color in particular.
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Krisberg, B., & Austin,J. (1978). History of the Control and Prevention of Juvenile Delinquency in America. In B. Krisberg & J. Austin (Eds.),
The Children of Ishmael: Critical Perspective on Juvenile Justice
(pp. 7-50). Palo Alto, CA: Mayfield.
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Feld, B.C. (2001). Race, youth violence, and the changing jurisprudence of waiver.
Behavioral Sciences & the Law,
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(1), 3-22.
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Steiner, B., Hemmens, C., & Bell, V. (2006). Legislative waiver reconsidered: General deterrent effects of statutory exclusion laws enacted post-1979.
Justice Quarterly, 23
(1), 34-50
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Restivo, E. (2019, Feb 14). Stop putting juveniles in solitary confinement. Daily News. www.greensburgdailynews.com/opinion/columns/stop-putting-juveniles-in-solitary-confinement/article_d438d7bc-4e3d-5a9e-97da-22706d6037c8.html
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Hemmens, S., & Bell, C. (2006). Legislative waiver reconsidered: General deterrent effects of statutory exclusion laws enacted Post 1990.
Justice Quarterly, 23
(1), p34-59.
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Sanborn, J. (2004). The adultification of youth. In P. Benekos & A. Merlo (Eds.),
Controversies in juvenile justice and delinquency
(pp. 143-164). Anderson Publishing.
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Burke, A. (2016). Trends of the time.
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