1. CRIM 309 Detention and Waivers

2. Pre-Adjudication Detention  Detention=jails for juveniles  Intended to be a short-term stay for juveniles considered to be a (Schall v. Martin, 1984): Flight risk Risk to public safety Risk to self  Approximately 20% of all juvenile arrests result in detention, but detention has increased over the years, leading to reoccurring overcrowding  Detention should be reserved for most serious offenders but this is not always the case  Police make the initial decision whether to detain or not—take the youth to a detention intake center where a final decision is made  Detention intake precedes the general intake proceeding  Process is handled by detention intake officers, who may or may not be staff of Probation depending on how a county structures its detention facilities  Juveniles do not have an option for bail

3. The Decision to Detain  The decision to detain a youth is determined based on: Seriousness of the crime Youth’s status in the system Availability of parents/caregiver Presence of warrants Space  Many detention facilities now use a standardized screening tool to help make the detention decision Variety of factors are coded Youth receives a score that dictates whether or not he/she will be detained

4. The Detention Process  Following an initial decision to detain, a youth must receive a detention hearing within 24-72 hours  Court must determine if there is probable cause and suitability for detention need to hold the youth until adjudication  Hearing is not guilt-finding process; thus, a lot of information may be used to assess the need for detention that will not/cannot be used in adjudication

5. Rights in the Detention Process  If hearing is not held within specified time, youth must be released—charges will still be pending  Youth are not constitutionally entitled to bail—some states allow for bail Not entitled because of parens patriae—court is acting in the best interest of the child  JJDP Act stresses removal of juveniles from adult jails but allows for the use of adult jails if youth is separated (by sight and sound) from adult offenders Compliance with the JJDP Act took a long time Juvenile offenders were often held in adult jails until the 1980s in many places and into the 1990s in a few places Use of adult jails is now more typical in rural areas where the availability of youth facilities is limited or non-existent

6. Ways to Transfer to Adult Court  Judicial Waivers  Legislative Waivers  Prosecutorial Waivers  A mixture

7. Judicial Waivers  Judicial Discretionary Waiver: Judge determines whether a case will be heard in adult or juvenile court at a hearing—decision is entirely up to the judge  Due Process Rights: In the Kent decision, juveniles were given the right to a hearing and: The right to representation at the hearing The right to access all records considered for the waiver The right to hear a statement of the reasons in support of the waiver  Judges must consider a variety of factors including (but not limited to— depends on state law) the following when deciding whether to waive a juvenile to adult court: Seriousness of offense and public safety Was the offense committed in an “aggressive, violent, premeditated, or willful manner?” Sophistication and maturity of the juvenile Previous history Prospects for adequate rehabilitation

8. Judicial Waivers, Continued  Other types of judicial waivers Presumptive—must go to adult unless proven amenable to available rehabilitative services during a hearing: Prosecution must show probable cause for the offense and prove that youth meets criteria Mandatory—must go to adult once criteria are substantiated in the hearing: Must only determine whether the youth meets the criteria

9. Legislative Waivers  Statutory Exclusion: State law eliminates juvenile court jurisdiction over certain offenders Age exclusion Offense exclusion Prior record exclusion All three  Reverse waivers: Waiver filed in adult court to return case to juvenile court for adjudication  Once an adult, always an adult: Once filed in adult, all subsequent offenses must be tried in adult court.

10. Prosecutorial Waiver  Also known as Direct File or Concurrent Jurisdiction: Prosecutor decides whether to file a case in adult or juvenile court— judicial waiver is not necessary  Must typically meet certain criteria based on offense, age, prior record  No hearing or rights related to a hearing are required

11. Reasons for Waivers  To deal with chronic offenders  Remove offenders from the juvenile justice system who cannot benefit from rehabilitation  Allow courts to sentence serious and violent offenders to longer and harsher sentences than could be imposed by the juvenile court.  Questionable whether waivers are used for only these purposes and the extent to which waivers are effective responses to crime

12. Other Punitive Changes  Lowering the age of juvenile court jurisdiction  Removing or limiting confidentiality provisions for juvenile cases  Creating and maintaining database of fingerprints and photos of juveniles  Prohibiting the sealing or expunging of juvenile court records

13. Transfer Statistics  Hit peak in 1994 at 12,000  Unknown how many prosecutorial waivers and statutorily excluded offenses  Who is making the decision? 45% Prosecutors 40% Statute 15% Judges  Who is being transferred? Not necessarily chronic offenders Not necessarily the most serious offenders—a lot or property and drug offenses are waived to adult court Typically offenses specific  Problems: Discretion in prosecutorial waivers Rigidity/over-inclusiveness of statutory exclusions

14. Impact of Transfer Policies  Assumption: Transfer to adult court with adult penalties will deter future criminality  Is this assumption correct? No. Transferred youths tend to recidivate more often and more quickly No evidence of a general or specific effect  Possible reasons why juvenile court processing is more effective: JC is better able to identify serious, violent, chronic offenders for adult processing Treatment in JC produces more success than adult sanctions Criminal justice system simply fails to deter recidivism

15. Experiences of Transferred Youths  Held favorable opinions of the juvenile court and believed there was an intent to help  Did not feel that criminal court cared or was concerned about situation  Understood adult processing was meant to punish but felt that sentencing was not based on offense as much as on judgments of them as persons  With regard to pre-adjudication detention: Those in juvenile facilities made relationship with at least one staff member Those in adult facilities found the environments stressful and dangerous. They were often victimized, and felt overwhelmed, confused, and depressed

16. Impact, Continued  With regard to long-term care: Those held in juvenile placements described the experience in more positive ways—felt staff generally cared Those held in adult prisons felt they were viewed as “convicts,” “nobodies”; correctional officers were hostile and provoked outbursts; lack of trust with staff; engaged in more disruptive behavior and associated with older, more experienced offenders  Higher rates of victimization among juveniles held in adult prisons

17. Is the Criminal Justice System Better?  Mistakes in murder cases  Poor representation in death penalty cases  Poor recidivism rates after imprisonment  Discrimination in processing  Inconsistent, capricious sentencing  Overcrowded facilities  Zimring: “Punitive Necessity”—responding to public appeal for more punishment and perceived inequities in the amount of punishment received in one system over another