Article Review: Trying Children as Adults
This 2002 paper by Allen discussed the increasing recent trend by many U.S. states to amend laws so that juvenile offenders can more easily be transferred to adult courts. Allen saw the trend as regrettable, focusing more on punishment and less on rehabilitation, following recent Federal legislation reducing state-level independence in the juvenile justice processes.
In his Introduction, Allen commented that whilst America allegedly holds its children in high regard, it nonetheless increasingly heads towards trying juveniles in adult courts for more and more crimes. He stated the country has gone “full circle”, starting from a justice system with no separate system for child offenders, then the creation of a juvenile justice system starting around the end of the 19th century. The situation then changed again, probably arising from Supreme Court decisions in 1966 and 1967 allowing juvenile cases to be transferred to adult court in certain situations. Further Supreme Court rulings into the 1980’s gave the courts yet more scope to transfer juvenile cases to adult courts.
Allen noted that despite evidence of falling rates of violent juvenile crime in the 1990’s, state statutes continued to expand the facility to transfer cases to adult court, the transfers often occurring without weighing all the factors such as what is best for the child, but instead based primarily “on the offense and the concern for public safety.”
The judicial waiver system, whereby the judge, or the prosecutor, or even the juvenile offender can elect to have the case transferred to adult court, is permitted in most states. In Alabama for example, although the prosecutor should consult with probation services before filing the waiver motion, that consultation has been ruled as “not mandatory.” However, for all transfer motions, the Alabama juvenile court must hold a two-phase hearing to determine either if the transfer is in the child’s best interest or if it is needed for reasons of public safety. The probable cause phase decides whether there is sufficient cause to assert that the juvenile did in fact perpetrate the alleged crime. Then the dispositional phase examines a required number of factors before authorizing transfer of the case to adult court. Oddly, the system still allows a transfer to be ordered even when a youngster has no prior criminal record and it appears would be “an excellent candidate for treatment and rehabilitation.” For offenders of at least 16 years old in Alabama, transfer is mandatory in the case of any of six specified offenses, and Appeal Court precedents have effectively prevented such juveniles appealing those decisions.
Compared with Alabama, Allen noted that the laws in Georgia, Mississippi and Tennessee have a little more flexibility in this area, permitting cases to be transferred back to juvenile justice (reverse waiver) in certain circumstances. Also, Georgia and Florida are two of fifteen states whose laws accommodate a “prosecutorial waiver” for major crimes committed by children of any age, allowing the prosecutor to select either juvenile or adult court.
Allen saw the increasing Federal trend to crack down on juvenile crime as coming from public fears and concerns, but as mistakenly legislating to impose tougher sentencing rather than tackling the causes. He also saw states being pressurized to follow Federal lines and thus losing independence of action. Allen considered the result to be stifling state level initiative and reducing the ability of the juvenile courts to deal with youth crime by focusing on rehabilitation. Instead, transferring juvenile cases to adult courts is becoming more automatic for certain ages and certain crimes, plus the minimum age at which transfers can occur is being reduced. The impression gained is that transfers are made more to appease the public than to protect society.
In the concluding section of his paper, Allen questioned whether there is a better approach than trying and sentencing juveniles (including in some cases the death sentence) when they are in many other respects categorized as children and consequently denied adult rights and privileges. Existing treatment and rehabilitation programs have been proven to work and can convert offenders into model citizens. In contrast, juveniles who serve time in adult prisons are highly likely to become lifelong criminals.
Whilst there have been some particularly violent and even horrific crimes committed by juveniles, Allen is right to suggest that many states are far too willing to “pass the buck” up to the adult courts instead of making every effort to find ways to treat and rehabilitate young offenders within the juvenile justice system. As Allen suggested in his thought-provoking and well-researched paper, such programs do exist and have been shown to work, and surely must be worth the time and costs involved, which will be far less in real terms than incarcerating youngsters in adult prisons for years, effectively turning them into career criminals as almost a certain consequence.
Allen, D., C. “Trying children as adults.” Jones Law Review 6.1 (2002), 27. Academic OneFile. Web. 15 Nov. 2012.