Pretrial Procedures Transfer hearings Detention Intake Diversion Petition and pretrial release Bail and preventive detention Plea bargaining (adjustment)

Transfer to adult court Transfer, waiver, bindover, removal Concurrent jurisdiction Excluded offenses (traffic, serious) Number of excluded offenses has increased Judicial waiver to adult court

Kent v. U.S. Waived to adult court, despite requests for a psychiatric evaluation, access to social service file, motions for a hearing Found guilty in adult court for housebreaking and robbery, not guilty by reason of insanity for rape

Kent v U.S. (1966) Court ruled that cases of waiver required: A hearing Access to counsel and access by counsel to social service records Reason for the decision

Criteria to be considered Seriousness of offense Aggressive or violent Maturity of juvenile Record of the juvenile Public protection Potential for rehabilitation

Breed v. Jones Petition filed and he was adjudicated Found unfit for juvenile court at disposition hearing Transferred to adult court Found guilty U.S. Supreme Court determined that this was double jeopardy (5th amendment

Transfer hearings Full hearing Notice Right to counsel Statement for reasons

Debate over transfer Get tough vs. rehabilitation 1% now transferred (drugs most common) Cases waived increased in early 1990s, number has now been decreasing

Debate Waivers do not necessarily increase public protection; result may be the same in both juvenile and adult court In one study., only 3% of juveniles tried in adult court received longer sentences than they would have received in juvenile court (1996)

Debate However, in another study those waived to adult court received significantly greater sentences than those retained in juvenile court (1986) Another problem is that transfers might be motivated by political considerations rather than the case

Debate One study found that juveniles transferred to adult court no more dangerous than those retained Transfer decisions not consistent: appears to be racial disparity Problem of prosecutorial discretion: in some jurisdictions prosecutor makes the decision

Debate Need for transfer for very serious cases: juvenile justice system not set up to deal with such cases Juveniles transferred have greater security risks, less swift punishment, lower conviction rates, shorter incarceration, higher recidivism

Detention Temporary care of youths by the state in a physically restricted facility pending court disposition or transfer to another placement Shelter care: temporary care in physically unrestricting facilities

Detention Movement to remove status offenders and dependent/neglected to less secure facilities, such as temporary foster care 60% of detainees are delinquent Many status offenders are runaways Increasing number of drug offenses

Detention Increase in the use of detention Majority are detained briefly and released to parents, screened by intake probation officers No uniform criteria for detention decisions Race, class and # of parents might have an influence

Detention decision NCCD recommends that the standards should be: likelihood of new offense, a danger to themselves or community, or likelihood of running away Most jurisdictions require a detention hearing to extend the period of detention beyond 24 hours

Detention hearing This hearing should be: Without delay Right to notice and counsel Provision of services

Detaining juveniles in adult jails More common in rural areas Risk of victimization Few services Juvenile Justice and Delinquency Act amended in 1989 to require states to remove juveniles from adult jails Not clear how often this happens—most common estimate 100,000/year

Intake Screening of cases by the juvenile justice system Decisions: send the youth home, diversion, file a petition, file a petition and detain Consent decrees and informal probation or informal adjustment

Intake Considerations: age, offense, prior record, cooperativeness of child and parents, whether the youth can get appropriate services elsewhere Legal rights? Intake traditionally handled by juvenile probation Increased role of the prosecutor

Diversion Screening out children from the juvenile court without judicial decision Roots: labeling theory Common criteria for diversion: nonviolent or status offender, or alcohol or drug problem, age, no serious priors

Diversion Variety of mechanisms through probation, the court, the prosecutor. Successful participation necessary to avoid court action In some jurisdictions, 50% of youths are diverted Net widening

Petition Filing a petition—can be filed by police, parents, probation, or other social service agency If the child admits to the allegations, a hearing might be scheduled and a treatment plan developed Otherwise, adjudication hearing set

Pretrial Probation does an assessment Right to notice (youth, counsel and parents) Continued detention? No right to bail, because it is a civil proceeding, can be released to parents, detention is supposed to be rehabilitative, not punitive

Bail Some states do allow for bail for youths All the problems of the bail system then apply Without bail, youths have few rights

Preventive detention Detaining a person because of his/her suspected danger to the community and because he/she might commit more crimes Can a person be detained for acts he/she has not yet committed? Supreme Court eventually upheld preventive detention for adults, but it is seldom explicitly applied

Preventive detention All states do allow for the preventive detention of juveniles, because although adults have a right to liberty, juveniles have a right to custody, and can be detained for their own protection

Schall v. Martin Detention based on prediction of future behavior not a violation of due process Must be procedural safeguards, such as notice, a hearing and a statement of facts, before placement in detention

Plea bargaining Not a part of the juvenile court originally, not seen as necessary because the court was there to help Increasing role of the prosecutor Most states have now addressed and regulate the practice, but the amount of regulation varies widely More formal in urban areas

Plea Bargaining Considerable debate over whether it should be used in the juvenile system It appears to be much less common in the JJS as compared to the adult system, but on the increase Less common because some of the incentives to plea bargain are less important in the juvenile system (I.e. dropping a felony to a misdemeanor)