By: Sara Wanous

Every year, at least 76,000 children come in contact with the adult criminal justice system.[1]  When a judge waives a child into adult court, the process, opportunities, sentencing discretion, and collateral consequences look entirely different than if the child remained in juvenile court.  In adult court, the child is considered an adult for all purposes of the trial and sentencing.  A child who goes through the adult court process and is convicted as an adult can be placed in adult jails or prisons, which lack developmentally appropriate programming and care for children.[2]  Upon release, children involved in the adult criminal justice system experience the same collateral consequences as [formerly incarcerated?] adults, including barriers to finding employment, housing, and educational opportunities and possible restrictions on voting because of their criminal record.[3]  In contrast, the juvenile justice system has the flexibility to provide alternatives to incarceration and probation including access to rehabilitative programs and community-based solutions.[4]  Additionally, juvenile court judges have greater discretion to take each child’s unique circumstances into account as they make decisions.[5]

Mandatory waiver laws require, in cases that meet a particular criterion, that the case is transferred into adult court without any judicial discretion involved.[6]  Twelve states currently have active mandatory waiver laws.[7]  These laws require juvenile court judges to send children to adult criminal court after a finding of probable cause, as defined by the statute, and confirmation of the child’s age, allowing for no judicial discretion at all.  For example, in West Virginia, the juvenile waiver and transfer of jurisdiction statute states that the court shall transfer a child to adult court if there is probable cause to believe that the child is at least fourteen years old and has committed one of a list of crimes.[8]  These crimes include treason, some types of murder, some types of armed robbery, kidnapping, first-degree arson, or first-degree sexual assault.[9]  The only part that a juvenile court judge plays in this scheme is determining if there is probable cause and confirming the child’s age.

One argument in favor of mandatory waiver is that waiving a child into adult court for serious offenses will deter crime, but that is proven to be false.  For example, a study in Idaho showed that in the five years after introducing automatic transfer provisions, there was a thirteen percent increase in arrests for juvenile offenses.[10]  Similarly, a six-year study in New York found that the use of automatic transfer for violent offenses had no deterrent effect.[11] Additionally, waiving a child into the adult system does not reduce recidivism.  On the contrary, children prosecuted in the adult system are thirty-four percent more likely to recidivate and are more likely to recidivate with violent offenses than children processed in the juvenile system.[12]

Additionally, the age, current brain development, and maturity of a child should be considered before waiving them into adult court.  The brain of a child is fundamentally different than the brain of an adult because a child’s brain is still under development.[13]  For example, the pre-frontal cortex, which controls cognitive abilities, prioritizing thought, and anticipating consequences is not fully developed until early adulthood.[14]  The Supreme Court recognized in Roper,[15] Graham,[16] and Miller[17] the unique position that children are in due to their development.  Specifically, the Court has recognized that children “deserve[] increased constitutional protections within the criminal justice system.”[18]Mandatory waiver laws prohibit the judge from assessing the child through this developmental lens, instead limiting their inquiry to the age at the time of the offense and criminal charges for waiver.

According to Graham, any punishment imposed must be “directly related to the personal culpability of the criminal offender.”[19]  “Transfer[ring the child] to the adult criminal system cannot be related to the personal culpability of a juvenile offender if no hearing is held to determine his level of culpability.”[20]  As the Supreme Court stated in Kent v. United States, “there is no place in our system of law for reaching a result of such tremendous consequences without ceremony – without hearing, without effective assistance of counsel, without a statement of reasons.”[21]  A juvenile court judge should always have the discretion to keep the child’s case in juvenile court and treat the child as a child. Thus, mandatory waiver laws need to be eliminated.

[1] Campaign for Youth Justice, Mandatory Transfer (2020)

[2] Jeree Michele Thomas & Mel Wilson, Social Justice Brief: The Color of Juvenile Transfer: Policy & Practice Recommendations 5 (2017) (highlighting that rehabilitative programming is limited in adult facilities and staff lack specialized training in serving youth).

[3] See id. (emphasizing that children experiencing these collateral consequences do not have the lived experience to help them navigate these challenges, thus setting them up for failure).

[4] Jennifer Park, Balancing Rehabilitation and Punishment: A Legislative Solution for Unconstitutional Juvenile Waiver Policies, 76 George Washington L. Rev. 788, 791 (2008) (highlighting the individualized approach and range of treatment options that were developmentally appropriate and in the best interest of the child such as in-home therapy, education programs, etc.).

[5] See id. (stating that the focus of a juvenile judge’s sentencing is on rehabilitation and individual treatment needs of the child).

[6] See Campaign for Youth Justice, Mandatory Transfer (2020)

[7] See id.

[8] See W. Va. Code § 49-4-710 (2020).

[9] See id.

[10] See Danielle Mole & Dodd White, Transfer and Waiver in the Juvenile Justice System 2, 14 (Child Welfare League of America, Inc. 2005).

[11] Id. (highlighting the lack of deterrent effect despite media efforts to inform children of the new procedures).

[12] Campaign for Youth Justice, supra note 1.

[13] See Mole, supra note 8, at 21 (giving the example that age restrictions for purchasing alcohol and smoking exist because children are still maturing).

[14] See Id. (stating that adolescents cannot reason as well as adults because of a lack of biological maturity).

[15] See Roper v. Simmons, 543 U.S. 551, 569 (2005) (highlighting juveniles’ lack of maturity and diminished culpability).

[16] See Graham v. Florida, 560 U.S. 48, 68 (2011) (emphasizing that “parts of the brain involved in behavior control continue to mature through late adolescence”).

[17] See Miller v. Alabama, 567 U.S. 460 (2012) (highlighting that children are more likely to reform due to brain development).

[18] Brian Hamack, Go Directly to Jail, Do Not Pass Juvenile Court, Do Not Collect Due Process: Why Waiving Juveniles into Adult Court without a Fitness Hearing Is a Denial of Their Basic Due Process Rights, 14 Wyo. L. Rev. 775, 806 (2014).

[19] Graham v. Florida, 560 U.S. 48, 71 (2011).

[20] Hamack, supra note 15, at 822.

[21] Kent v. United States, 383 U.S. 541, 554 (1966).

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