1. Waiver To Criminal Court
CJ420 Juvenile Justice
Waiver To Criminal Court
Unit 4 Seminar
Jeff Collins

2. Introduction
Introduction to the process of transferring juvenile cases to criminal court.
This presentation explains the different ways in which a juvenile case can be transferred and the types of offenses that are most commonly transferred. 2

3. Categories of Children
Delinquent – violated the penal code
Undisciplined – unruly
Dependent
Neglected
Abused
Status offenders – violated rules only children can violate
Adults arrested = Juveniles taken into custody
Preliminary hearing for adults = Detention hearing
Grand jury indictment/ prosecutors information = Petition
Adults tried = Children adjudicated
Adults sentenced = Juveniles receive dispositional hearing
Adults punished = Children treated
Both can have appeals

4. Illinois Juvenile Court Act of 1899
 Principles motivating the Illinois reformers: 
Children should not be held as accountable as adult transgressors
The objective of the juvenile justice system is to treat and rehabilitate rather than punish
Disposition should be predicated on analysis of the youth’s special circumstances and needs
The system should avoid the trappings of the adult criminal process with all of its confusing rules and procedures

5. Illinois Juvenile Court Continued
The Illinois Juvenile Court Act established juvenile delinquency as a legal concept.
The key provisions of the act were the following: 
A separate court was established for delinquent and neglected children
Special procedures were developed to govern the adjudication of juvenile matters
Children were separated from adults in courts and in institutional programs
Probation programs were to be developed to assist the court in making decisions in the best interests of the state and the child

6. Five principles supported by the Juvenile Court Act:
State acts as parent
Nonpunitive efforts to save the child
Nurture/prevent stigmatization of formal court processing
Individualized justice
Not to punish, but to help

7. Uniform Juvenile Court Act of 1968
An attempt to encourage uniformity in how each and every juvenile court operated. The purpose, scope, and procedures were reformed to be uniform in every state. Before the reform there were varying definitions of what behaviors were considered delinquent.

8. Overview of Waiver
Throughout the history of the Juvenile Court all crimes involving juvenile-age offenders have first been filed in the juvenile court, regardless of the seriousness of the charge
All states and the District of Columbia have laws that provide for criminal (adult) court prosecution of juveniles under certain circumstances
Transferring juveniles to criminal court is not a new practice.
The statutes and the terms describing the process for waiver of juvenile court jurisdiction and transfer to criminal court differ somewhat from state to state 8

9. Overview of Waiver
Traditionally the transfer decision has been left to the discretion of the judge
Waive juvenile court jurisdiction
Certify the juvenile as an adult (Emancipation)
Transfer the case to criminal court 9

10. Overview of Waiver
The waiver decision essentially is a choice between punishment in adult criminal court or rehabilitation in juvenile court
Judicial waivers were exceptionally rare in juvenile court through the 1970’s when the focus of the court was on the needs and “best interests” of the child 10

11. Overview of Waiver
Person offenses (“Crimes Against the Person”) are the types of cases most likely to be transferred to criminal court.
Most cases involve juveniles who are males aged 16 and over.
The number of juvenile cases waived by judges to the criminal court has decreased since the 1990’s
Result of legislative changes in many states that provide for prosecutorial discretion and legislative exclusion as additional mechanisms to try juveniles as adults 11

12. Judicial and Legislative Developments
Basically three ways in which juveniles can be prosecuted in the adult criminal justice system
Differ according to who makes the transfer decision
Judicial Waiver
Statutory Exclusion
Concurrent Jurisdiction 12

13. Judicial Waiver
Judicial waiver = juvenile court judge has the authority to waive juvenile court jurisdiction and transfer a case to the criminal court
Usually requested by the prosecuting attorney and is granted by the court after a hearing 13

14. Judicial Waiver
The purpose of a waiver hearing is “not” to determine guilt or innocence
Purpose is: to assess the juveniles’ threat to public safety and amenability to treatment under the juvenile justice system 14

15. Judicial Waiver
Juvenile Court Judge considers such factors as the circumstances and seriousness of the alleged offense, prior adjudications, and the age and maturity of the youth
Two variations of judicial waiver
Mandatory waiver
Presumptive waiver 15

16. Judicial Waiver
Mandatory Waiver makes waiver mandatory in cases that meet certain age, offenses, or other criteria
Proceedings are initiated in the juvenile court, but the court has no role other than to confirm that the statutory requirements for mandatory waiver are met
Different from statutory exclusion because the case originates in the juvenile court 16

17. Judicial Waiver
Presumptive Waiver designates a category of cases for which waiver to criminal court is presumed to be appropriate
The juvenile rather than the State has the burden of proof in the waiver hearing. 17

18. Prosecutorial Discretion
Prosecutorial discretion allows prosecutors to file certain juvenile cases in either juvenile or criminal court.
(The statute is also referred to as direct file or concurrent jurisdiction.)
These direct file provisions give both juvenile and adult criminal courts the power to hear cases that have been specified in the statute according to seriousness of offense and age of offender 18

19. Prosecutorial Discretion
Prosecutorial transfer, unlike judicial waiver, is not subject to judicial review and is not required to meet the due process requirements established in Kent
Discretion is left up to the prosecutor whether to file the case in juvenile or criminal court 19

20. Statutory Exclusion – Automatic Waiver
Prosecutor does not have discretion regarding the court in which the case is filed
Once the decision is made to charge a juvenile with an excluded offense, the case must be filed in criminal court
A juvenile charged with an excluded offense is treated as an adult from the beginning of the judicial process
Political response toward the “get tough” trend of legislation 20

21. Additional Waiver Laws
Once an adult/always an adult: (not in IL) if convicted once as an adult then future offenses will go directly to adult court
Laws in 31 states require criminal prosecution for all subsequent offenses committed by the juvenile
In Illinois the minimum age of transfer to adult court is 13, in Kansas it is 10 21

22. The Law, Science, and Juvenile Waiver
A fundamental legal premise in the justice system requires that a crime must include both an act and an intent to commit the act
(The principle of fundamental fairness was demonstrated in a recent U.S. Supreme Court ruling in Atkins v. Virginia (2002) that banned the execution of mentally retarded persons who had committed murder.)
All western nations have separate systems of justice for juveniles based on the understanding that juveniles are less mature than adults, and therefore are less culpable 22

23. The Law, Science, and Juvenile Waiver
Youth deserve to be treated as less culpable for a number of reasons
the lower cognitive development of youth means they do not process information and consider alternatives as well as adults
adolescent judgment and emotional and social maturity are not as well developed as adults
youth are less aware of risks, and are more likely to take risks that may harm themselves and others
youth have a different perspective of time than adults, and think more in terms of short-term rather than long-term consequences
juveniles are more vulnerable to peer pressure than adults
youth make poorer judgments because they have less experience in decision making
recent research in neuroscience indicates that portions of the brain responsible for impulse control and decision making are underdeveloped compared to adults 23

24. The Law, Science, and Juvenile Waiver
The American Bar Association (ABA) has recognized the reduced culpability of youth based on differences in brain development between juveniles and adults.
(The ABA supports that assertion that adolescents are less morally culpable for their actions than competent adults, and are more capable of change and rehabilitation.)
The appearance of physical maturity does not mean an adolescent has the same reasoning capacity as an adult
Another misconception is that commission of a serious crime is a sign of maturity 24

25. The Law, Science, and Juvenile Waiver
The fact that adolescents are less mature than adults does not excuse them from punishment for violent crimes. It does however lessen their culpability and therefore the level of punishment.
For this reason it is important to have a fair and just process of determining through a hearing whether a juvenile offender is “amenable to treatment” in the juvenile system, or should be held accountable for a crime the same as an adult 25

26. Research on the Effects of Waiver
The stated purposes of most juvenile waiver and transfer laws focus on public safety, reduction of serious crimes by juveniles, and punishing young offenders who are believed to be - not amenable to treatment in the juvenile justice system 26

27. Future Trends in Waiver
It is important for legislatures to consider policies for responding to juvenile crime that are most effective in producing long-term benefits for the protection of the community and change for juvenile offenders. 27

28. Any Questions?
Goodnight
Thank You