Appendix: Legal Boundaries Between the Juvenile and Criminal Justice Systems in the United States Patrick Griffin In responding to law-violating behavior, every U.S. state 1 distinguishes between juveniles and adults. Every state maintains one court and correctional system for juveniles, and another for adults. And every state sets limits upon eligibility for juvenile handling boundaries where childhood ends and adult criminal responsibility begins. But no two states draw these boundaries in precisely the same way. States draw their juvenile-adult boundaries by means of three basic types of laws: Jurisdictional age laws set general upper-age limits to the original jurisdiction of juvenile courts. They may also set age-determined limits on juvenile courts retention of authority over individuals already under their jurisdiction. Transfer laws in all states provide for exceptions to the general jurisdictional age rules allowing or requiring certain categories of juvenile-age offenders to be prosecuted as adults in criminal court. In some states, blended sentencing laws further complicate the juvenile-adult boundaries. Some of these laws provide juvenile courts with criminal sentencing powers. Others allow criminal courts dealing with juvenile-age offenders to impose sanctions in the juvenile correctional system. 1 For purposes of this discussion, the term states includes the District of Columbia. Except where otherwise noted, state laws summarized here are as amended through 2009. 1
Jurisdictional Age Boundaries In most states, the upper age of delinquency jurisdiction is 17 meaning that youth accused of violating the law before turning 18 come under the original jurisdiction of the juvenile courts, while those accused of violating the law on or after their 18 th birthdays are handled in criminal courts. But a substantial minority have an upper age of 16 meaning that they hold all 17-year-old offenders criminally responsible and a few have an upper age of 15 (Table 1). Generally, for purposes of determining whether a youth is to be handled as a juvenile or an adult, the age that counts is the age at the time of the offense. Laws drawing bright-line age boundaries between the juvenile and adult systems do not necessarily erase all age-based distinctions among those on the adult side of the line. Many states have ameliorative sentencing provisions, special holding or programming requirements, or separate correctional institutions for young adult offenders. Laws that set an upper age limit to the original jurisdiction of juvenile courts must be distinguished from laws that dictate how long juvenile courts may retain jurisdiction over delinquent youth already under their supervision. In most states, a juvenile court may continue to exercise dispositional jurisdiction over an adjudicated youth until the youth reaches age 21 (Table 2). Transfer Boundaries In addition to general jurisdictional age boundaries between the juvenile and adult justice systems, all states have transfer laws that alter these boundaries in exceptional cases, and allow or require criminal prosecution of some offenders who would otherwise fall on the juvenile side of the jurisdictional age line. 2
Transfer laws could be found in some of the earliest juvenile codes. In the last three decades of the 20 th century, however, they became far more sweeping in their coverage and inflexible in their operation. Transfer Mechanisms There are three basic kinds of transfer law. All states now have one or another of these kinds of laws, and most have more than one kind (Table 3). Judicial waiver laws allow juvenile courts to waive jurisdiction over individual cases. A case subject to waiver begins in juvenile court, and may be transferred only after a judge s approval, based on articulated standards, following a formal hearing. While all states set minimum thresholds for waiver and prescribe standards that must be consulted in waiver decision-making, most leave the waiver decision largely to the judge s discretion. However, some set up presumptions in favor of waiver in certain classes of cases, and some even specify circumstances under which waiver is mandatory. Statutory exclusion laws grant criminal courts exclusive original jurisdiction over cases meeting certain statutorily defined age/offense thresholds. If a case comes within a statutory exclusion category, it must be filed originally in criminal court. Prosecutorial discretion or concurrent jurisdiction laws define a class of cases in which prosecutors may decide whether to proceed in juvenile or criminal court. No hearing is held to determine the appropriate forum, and there may be no formal standards for deciding between them. 3
There are two other common kinds of laws that serve to regulate movement across transfer boundaries in many states: Once an adult/always an adult laws mandate criminal handling for accused juveniles who have been criminally prosecuted in the past, regardless of the seriousness of the current offense. Reverse waiver laws allow juveniles whose cases are in criminal court to petition to have them transferred to juvenile court. Transfer Thresholds Judicial Waiver. Judicial waiver is the oldest and still the most common form of transfer law, but it is no longer the sole means by which juvenile-age offenders reach criminal court in most of the country. In comparison with other transfer mechanisms, judicial waiver procedures are both individualized and transparent. But they are also time- and resourceintensive. A total of 45 states have discretionary waiver laws designating a class of cases in which waiver of jurisdiction may be considered, generally on the prosecutor s motion (Table 4). Most states set a minimum threshold for waiver-eligibility generally a minimum age, a specified type or level of offense, and/or a sufficiently serious record of previous delinquency but it is often quite low. In a few states, prosecutors may ask the court to waive virtually any juvenile delinquency case. As a practical matter, however, even in these states, waiver proceedings are likely to be relatively rare. Nationally, the proportion of juvenile cases in which prosecutors seek waiver is not known, but waiver is granted in less than 1% of petitioned delinquency cases (Adams and Addie, 2009). 4
Presumptive waiver laws in 15 states designate a category of cases in which waiver to criminal court must be presumed appropriate (Table 5). A juvenile meeting age, offense, or other statutory thresholds triggering presumptive waiver must rebut the presumption in favor of transfer, or the case will be sent to criminal court. Mandatory waiver laws in 15 states require juvenile courts to transfer certain kinds of cases for criminal prosecution (Table 6). Proceedings against juveniles meeting criteria for mandatory waiver must be initiated in juvenile court, but the transfer outcome in such cases is automatic. At most, the juvenile court s role is to make a probable cause determination, and perhaps issue preliminary orders related to pre-trial holding, appointment of counsel, and so on, before transferring the case to criminal court. Because a mandatory waiver law functions like a statutory exclusion, removing a predetermined category of cases from juvenile court jurisdiction, age/offense/prior record thresholds for mandatory waiver tend, like exclusion thresholds, to be higher. Statutory Exclusion. A total of 29 states have statutory exclusion laws, limiting the juvenile court s original jurisdiction in such a way as to leave out certain kinds of cases involving juvenile-age offenders (Table 7). Typically, the term delinquency is defined to exclude certain offenses or age/offense/prior record combinations. Because accused juveniles in such cases are outside the juvenile court s original jurisdiction, they are instead handled in criminal court. When the states that legislatively exclude a class of offenders from juvenile court jurisdiction are combined with those that mandate judicial waiver in some cases (as described above), the resulting total is 38 states that provide for automatic transfers. Prosecutorial Discretion. Prosecutorial discretion or concurrent jurisdiction laws in 15 states define a category of cases in which both criminal and juvenile courts are given jurisdiction, 5
each concurrent with the other (Table 8). In such cases, it is up to prosecutors to decide whether to proceed initially in juvenile or criminal court. Generally, the choice is entirely discretionary few states make any effort to guide or limit prosecutors decisions, or to specify any general principle or specific factors to be considered. Because no hearing is held and no evidentiary record created, defendants have no opportunity to test the basis for prosecutors decisions or to present counter-evidence of their own. And afterwards, there is nothing to review to determine whether decisions were made appropriately. As a result, prosecutorial discretion laws in some places may operate more like statutory exclusions, sweeping wholesale categories into criminal court, with little or no individualized consideration. In all, 44 states have laws including prosecutorial discretion, statutory exclusion and/or mandatory waiver laws that either dictate criminal handling of certain defined categories of juvenile offenders, or else place decisions about that handling solely in the hands of prosecutors. Juvenile Blended Sentencing Although they do not provide for the criminal prosecution of juveniles, juvenile blended sentencing laws bear a functional resemblance to transfer laws, in that they expose some categories of serious juvenile offenders to criminal penalties. A total of 14 states empower their juvenile courts to impose criminal sanctions under some circumstances (Table 9). The most common type of juvenile blended sentencing scheme allows juvenile court judges to impose both juvenile and suspended adult sanctions on certain categories of offenders. A juvenile subject to such a combination sentence remains in the juvenile correctional system only conditionally, with a criminal sentence dangling overhead as a way of encouraging cooperation and discouraging future misconduct. 6
Age, offense, and prior record criteria qualifying juveniles for blended sentencing treatment are similar to but generally broader than criteria for transfer to criminal court. Although they remain in juvenile court, juveniles subject to blended sentencing are entitled to the basic procedural rights afforded to criminal defendants, including at a minimum the right to be tried by a jury, and often the right to be indicted by a grand jury as well. Individualized Judicial Corrective Mechanisms Even juveniles subject to automatic or prosecutor-controlled transfer mechanisms may be afforded a chance, at some point in the process, to make an individualized showing that they belong in the juvenile system. There are two kinds of judicial corrective or fail-safe mechanisms that serve to inject individualized consideration into what would otherwise be automatic or inflexible transfer processes. Reverse waiver laws permit criminal courts to restore transferred youth to juvenile court for trial or disposition. Criminal blended sentencing laws authorize criminal courts to impose juvenile dispositions rather than criminal ones in sentencing transferred youth. A total of 24 states have reverse waiver laws that allow juveniles subject to prosecution in criminal court to petition to have their cases transferred to juvenile court (Table 10). Generally, in such cases the criminal court is guided by the same kinds of broad standards and considerations as a juvenile court in a waiver proceeding. In most cases, the reverse waiver hearing is held prior to trial, and if the reverse waiver is granted, the case is adjudicated in juvenile court. But sometimes the offender s guilt must be established first, and reverse waiver is for disposition purposes only. A total of 18 states have criminal blended sentencing laws, authorizing criminal courts to sentence juveniles who have been tried and convicted as adults to supervision, treatment, and rehabilitative programs available only in the juvenile system (Table 10). In other words, while 7
the youth may have been convicted as an adult, he or she will be sanctioned as a juvenile. The juvenile disposition may be imposed by itself or in combination with a suspended criminal sentence to ensure cooperation with the dispositional program. A total of 15 states have no fail-safe laws at all, though juveniles in these states may either be categorically excluded from juvenile court jurisdiction or subject to criminal handling at the unreviewable discretion of prosecutors. In 14 other states, fail-safe mechanisms either are not available in every case subject to categorical transfer rules, or else restrict judges authority to make individual exceptions to those rules (Table 10). Conclusion More research on the criminal justice processing of juvenile-age offenders in the United States is urgently needed. There are no national datasets tracking youth who are prosecuted and sanctioned as adults as a result of the complex patchwork of state transfer, blended sentencing and jurisdictional age laws, and state reporting in this area is inconsistent and incomplete. The most basic questions about the operation of these laws including the total number of young people affected, their offenses, their ages and other demographic characteristics, the way their cases are handled, the kinds of sentences they receive, and their post-sentencing outcomes cannot currently be answered. As a result, practitioners and researchers are unable to test the assumptions behind the laws, and policymakers and the public lack information with which to judge their workings and effectiveness. One part of the solution would be an improved national data collection effort capable of yielding reliable national estimates regarding criminally processed youth in general. But improved research and reporting at the state level is clearly needed as well, in order to inform comparisons of the operation and impact of individual state transfer, blended sentencing and jurisdictional age laws. 8
References Benjamin Adams and Sean Addie. (June 2009) Delinquency Cases Waived to Criminal Court, 2005. OJJDP Fact Sheet. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention. 9
Table 1: Upper Age of Original Juvenile Court Jurisdiction State Age 15 Age 16 Age 17 State Age 15 Age 16 Age 17 Alabama Montana Alaska Nebraska Arizona Nevada Arkansas New Hampshire California New Jersey Colorado New Mexico Connecticut* New York Delaware North Carolina District of Columbia North Dakota Florida Ohio Georgia Oklahoma Hawaii Oregon Idaho Pennsylvania Illinois** Rhode Island Indiana South Carolina Iowa South Dakota Kansas Tennessee Kentucky Texas Louisiana Utah Maine Vermont Maryland Virginia Massachusetts Washington Michigan West Virginia Minnesota Wisconsin Mississippi Wyoming Missouri Note: Table information is as of the end of the 2009 legislative session. * Connecticut s upper age of original jurisdiction is being raised in stages from 15 to 17, with the transition completed by 2012. ** In Illinois, the upper age rose from 16 to 17 for those accused of misdemeanors only, effective 2010. 10
Table 2: Age Limits on Retention of Juvenile Court Jurisdiction State Prior to 21 st Birthday 21 st Birthday Beyond 21 st Birthday State Prior to 21 st Birthday 21 st Birthday Beyond 21 st Birthday Alabama Montana Alaska Nebraska Arizona Nevada Arkansas New Hampshire California New Jersey Colorado New Mexico Connecticut New York Delaware North Carolina District of Columbia North Dakota Florida Ohio Georgia Oklahoma Hawaii Oregon Idaho Pennsylvania Illinois Rhode Island* Indiana South Carolina Iowa South Dakota Kansas Tennessee Kentucky Texas Louisiana Utah Maine Vermont** Maryland Virginia Massachusetts Washington Michigan West Virginia Minnesota Wisconsin Mississippi Wyoming Missouri Note: Extended jurisdiction may be restricted to certain offenses or juveniles. Table information is as of the end of the 2009 legislative session. *In 2007, Rhode Island lowered its jurisdictional retention limit from the 21 st to the 19 th birthday. ** In 2008, Vermont raised its jurisdictional retention limit for certain juveniles from the 18 th to the 21 st birthday. 11
Table 3: Transfer Mechanisms Judicial Waiver Prosecutorial Statutory Reverse Once an Adult State Discretionary Presumptive Mandatory Discretion Exclusion Waiver Always an Adult Number of states 45 15 15 15 29 24 34 Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Dist. Of Columbia Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming Note: Table information is as of the end of the 2009 legislative session. 12
Table 4: Discretionary Waiver Thresholds State Any Criminal Offense Felonies Capital Crimes Murder Person Property Drug Weapon Alabama 14 Alaska Arizona Arkansas 14 14 14 14 14 California 16 Colorado 12 12 12 Delaware Dist. of Columbia 16 15 Florida 14 Georgia 15 13 13 Hawaii 14 Idaho 14 Illinois 13 Indiana 14 10 16 Iowa 14 Kansas 10 Kentucky 14 14 Louisiana 14 14 Maine Maryland 15 Michigan 14 Minnesota 14 Mississippi 13 Missouri 12 Nevada 14 New Hampshire 15 13 13 New Jersey 14 14 14 14 14 14 North Carolina 13 North Dakota 16 14 Ohio 14 Oklahoma Oregon 15 15 Pennsylvania 14 Rhode Island 16 South Carolina 16 14 14 14 South Dakota Tennessee 16 Texas 14 14 14 Utah 14 Vermont 10 10 10 Virginia 14 Washington West Virginia Wisconsin 15 14 14 14 14 14 Wyoming 13 Notes: An entry in the column below an offense category means that there is some offense or offenses in that category for which a juvenile may be waived for criminal prosecution. The number indicates the youngest possible age at which a juvenile accused of an offense in that category may be waived. "" means no age restriction is specified for an offense in that category. Table information is as of the end of the 2009 legislative session. 13
Table 5: Presumptive Waiver Thresholds State Any Criminal Offense Felonies Capital Crimes Murder Person Property Drug Weapon Alaska California 14 14 14 14 14 Colorado* 12 12 12 Dist. Of Columbia** 15 15 15 15 Illinois 15 15 Kansas** 14 14 14 14 Maine Minnesota 16 Nevada** 14 14 New Hampshire 15 15 15 15 New Jersey 14 14 14 14 14 14 North Dakota 14 14 14 14 Pennsylvania 14 14 Rhode Island* Utah 16 16 16 16 16 Notes: An entry in the column below an offense category means that there is some offense or offenses in that category for which a juvenile is presumed to be an appropriate candidate for waiver to criminal court. The number indicates the youngest possible age at which a juvenile accused of an offense in that category is subject to the presumption. "" means no age restriction is attached to the presumption for an offense in that category. Table information is as of the end of the 2009 legislative session. * In Colorado and Rhode Island, the presumption is applied against juveniles with certain kinds of previous histories. ** In the District of Columbia, Kansas, and Nevada, the presumption applies to any offense committed with a firearm. 14
Table 6: Mandatory Waiver Thresholds State Felonies Capital Crimes Murder Person Property Drug Weapon Connecticut 14 14 14 Delaware 15 16 16 Georgia 14 14 15 Illinois 15 Indiana 16 Kentucky 14 Louisiana 15 15 New Jersey 16 16 16 16 16 16 North Carolina 13 North Dakota 14 14 14 Ohio 14 14 16 16 Rhode Island 17 17 South Carolina 14 Virginia 14 14 West Virginia 14 14 14 14 Notes: An entry in the column below an offense category means that there is some offense or offenses in that category for which waiver to criminal court is mandatory. The number indicates the youngest possible age at which a juvenile accused of an offense in that category is subject to mandatory waiver. "" means no age restriction is specified for an offense in that category. Table information is of the end of the 2009 legislative session. 15
Table 7: Statutory Exclusion Thresholds State Any Criminal Offense Felonies Capital Crimes Murder Person Property Drug Weapon Alabama 16 16 16 Alaska 16 16 Arizona 15 15 15 California 14 14 Delaware 15 Florida 16 16 16 Georgia 13 13 Idaho 14 14 14 14 Illinois 15 13 15 15 Indiana 16 16 16 16 16 Iowa 16 16 16 Louisiana 15 15 Maryland 14 16 16 16 Massachusetts 14 Minnesota 16 Mississippi 13 13 Montana 17 17 17 17 17 Nevada 16* 16 New Mexico 15 New York 13 13 14 14 Oklahoma 13 Oregon 15 15 Pennsylvania 15 South Carolina 16 South Dakota 16 Utah 16 16 Vermont 14 14 14 Washington 16 16 16 Wisconsin 10 10 Note: An entry in the column below an offense category means that there is some offense or offenses in that category that is excluded from juvenile court jurisdiction. The number indicates the youngest possible age at which a juvenile accused of an offense in that category is subject to exclusion. "" means no age restriction is specified for an offense in that category. Table information is as of the end of the 2009 legislative session. * In Nevada, the exclusion applies to any juvenile with a previous felony adjudication, regardless of the current offense charged, if the current offense involves the use or threatened use of a firearm. 16
Table 8: Prosecutorial Discretion Thresholds State Any Criminal Offense Felonies Capital Crimes Murder Person Property Drug Weapon Arizona 14 Arkansas 16 14 14 14 California 14 14 14 14 14 14 Colorado 14 14 14 14 14 Dist. of Columbia 16 16 16 Florida 16 16 14 14 14 14 Georgia Louisiana 15 15 15 15 Michigan 14 14 14 14 14 Montana 12 12 16 16 16 Nebraska 16 Oklahoma 16 15 15 15 16 15 Vermont 16 Virginia 14 14 Wyoming 13 14 14 14 14 Notes: An entry in the column below an offense category means that there is some offense or offenses in that category that is subject to criminal prosecution at the option of the prosecutor. The number indicates the youngest possible age at which a juvenile accused of an offense in that category is subject to criminal prosecution. "" means no age restriction is specified for an offense in that category. Table information is as of the end of the 2009 legislative session. 17
Table 9: Juvenile Blended Sentencing Thresholds State Any Criminal Offense Felonies Capital Crimes Murder Person Property Drug Weapon Alaska 16 Arkansas 14 14 14 Colorado Connecticut 14 Illinois 13 Kansas 10 Massachusetts 14 14 14 Michigan Minnesota 14 Montana 12 New Mexico 14 14 14 14 Ohio 10 10 Rhode Island Texas Notes: Ages in the minimum age column may not apply to all offense restrictions, but represent the youngest possible age at which a blended sentence may be imposed by a juvenile court. indicates that in at least one of the offense restrictions indicated, no minimum age is specified. Table information is as of the end of the 2009 legislative session. 18
Table 10: Individualized Judicial Corrective Mechanisms State Automatic/ Prosecutor- Controlled Transfer Reverse Waiver Available Criminal Blended Sentencing Available Not Available in All Cases No Judicial Corrective Available Number of States 44 24 18 15 14 Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Dist. of Columbia Florida Georgia Idaho Illinois Indiana Iowa Kentucky Louisiana Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming Note: Table information is as of the end of the 2009 legislative session. 19