Ethical Considerations of Juvenile Transfer to Adult Court free essay sample

In partial fulfillment of the requirements for (CMRJ 500) March 21, 2011 Abstract Juveniles in the criminal justice system are a special population. Throughout history juveniles have been looked at as needing to be protected from the harsh realities that face adults daily. The juvenile justice system has primarily operated in a parens patriae capacity and protected the rights of those that were legally incapable of protecting themselves such as minor children and the mentally ill. From 1987-1993 the juvenile homicide rate doubled causing critics and conservatives to questions the approach of the juvenile justice community calling it ‘soft on crime’ Steiner  amp; Wright,  (2006). There are strong arguments on both sides of the debate regarding placement of juveniles into the adult criminal justice system. When looking at the issues surrounding juvenile waiver policy it is helpful to remember that young minds can still be molded, and transformations can be easier to achieve with young minds than with adult minds. Due to this idea, and the fact that the juvenile justice system has historically been geared towards rehabilitation rather than punishment, therapy rather than retribution should be foremost in the minds of people involved in juvenile waiver processing and policy making. In the following pages the issues surrounding juvenile waiver will be analyzed from an ethical standpoint. Issues with subjects such as restorative justice, deterrence, conservative arguments, liberal arguments, super predators, flaws in the system, and an informed conclusion based upon what the studies imply about the effect of juvenile waiver on our youth. Keywords: Juvenile waiver, Juveniles in adult court, Juveniles in prisons Table of Contents Abstract2 Introduction4 Literature review 5 Conclusion 11 References 13 Introduction Court officials must do a balancing act when dealing with adjudicated juveniles dispositions. The interests of public safety need to be balanced with the needs of the youth when making decisions about which level of constraint is required in regards to juvenile dispositions. There is a considerable amount of argument about whether juveniles should be subject to the adult criminal justice system. This is to say that a juvenile who has committed a violent person offence cannot necessarily be put out in the community on probation and in many people’s opinion they should be punished more severely. For the safety of the public the juvenile in this case must be incarcerated or put into an institution. Are we really doing the juvenile involved justice by going as far as putting him in an adult institution though? Are there less restrictive ways to insure the safety of the public while still taking the juveniles needs into consideration? Less restrictive ways that would rehabilitate the juvenile rather than label him as delinquent or a lost cause and put him in prison have always been supported by the juvenile system. The juvenile justice system is, and has for the most part been geared towards rehabilitation of the offenders. This is due to the age of the offender and the fact that the juvenile, in most cases, will be released someday. For this reason, it is in our best interests to advocate for successful reintegration programs for juveniles, rather than harsher sentencing. Juvenile justice is a very important subfield of criminal justice. Many in the criminal justice field view deterrence at the juvenile level, from future criminal ideations, as the answer to much of the crime problem. If this tenet is followed then it makes sense to try to deter the unlawful behavior in juveniles before they turn into the next population of adult convicts. Many say that the answer is to give juvenile offenders harsher penalties including the use of adult sanctioning and more punitive practices. Others advocate for treatment and protection from the adversarial nature of the adult system in the spirit of the, not so long ago history of our juvenile system. Our juvenile justice system is still, for the most part in its infancy. The first public reformatory was founded in 1825 in New York. It was called the New York House of Refuge and was designed to help youth that were poor, abused, or orphaned with clothing, food, and shelter Champion, (2005). It wasn’t until 1945 that all states had passed legislation to establish a separate juvenile court system Champion, (2005). Before the establishment of these juvenile courts systems youth were dealt with by civil courts and other non-legal entities. We have come a long way from these humble origins and we still have a long way to go. In the last 60-70 years many things have changed and we have had to implement different strategies in attempting to find the most efficient way of dealing with juvenile crime. One of the more controversial practices in the juvenile justice system is the use of the adult court system to give harsher penalties. This strategy has been implemented in the hopes of frightening youth into desisting from further delinquent actions. Literature Review On any given night a person can turn on the news and hear numerous stories about juvenile predators and crime spree’s. During the late eighties through the mid nineties there was a dramatic rise in juvenile crime. This trend peaked in 1994 with over 13,000 cases being waived into adult courts Adams, amp; Addie, (2007). The chart shown below shows that the goals of increasing waivers for violent person offenses was not accomplished and that the majority of juvenile offenders that were waived was for property offense rather than for violent crimes. The decline in crime from 1994-2007 is attributed to an actual decline in crime, but also could be due to the statutory waiver laws that require certain crimes that are committed by juveniles to be filed directly in adult courts. By automatically waiving certain cases juvenile statistics do not show these cases at all. The offense profile and characteristics of cases judicially waived to criminal court have changed considerably Offense/ demographic 1985 1994 2007 Total cases waived 7,200 13,100 8,500 Most serious offense Person 33% 42% 48% Property 53 % 37% 27% Drugs 5% 12% 13 % Public order 9% 9% 11% Gender Male 95% 95% 90% Female5% 5% 10% Age at referral 15 or younger 7% 13% 12% 16 or older 93% 87% 88% Chart provided by Adams, amp; Addie, (2007). This dramatic shift in crime rates of violent juveniles was mostly portrayed in the media. The power of the media over public opinion gave rise to the term ‘super predator’ being used to describe juveniles being accused of and convicted of heinous crimes. Many thought that these types of violent crimes were reserved for the adult population. This caused outcry from the public to get tough on crime. During election years politicians would say that they would enact tougher laws to deal with crimes and criminals. This brought legislation to light that would shift juvenile policies from its historical parens patriae doctrine to a more punitive system that aimed to exact a price that fit the crime from the offender. Juvenile transfer to adult court allowed juveniles accused of serious offenses to be tried in adult court to make the punishments more severe and still maintain the juvenile system’s rehabilitative nature. This was a shift that was brought about by people such as Florida representative Bill McCollum supporting adult sanctions for juveniles, saying serious juvenile offenders should be thrown in jail, the key should be thrown away and there should be very little or no effort to rehabilitate them Redding, (1999, p. 1). Before going into some of the arguments for and against the use of juvenile waiver the ways in which it is implemented will be discussed briefly as they pertain to how the use of this provision can be just or unjust in some cases. There are three general forms of juvenile transfer. Concurrent jurisdiction laws allow prosecutors to use their good judgment and decide whether to file a case in juvenile court or directly to criminal court. Statutory exclusion laws award criminal courts original jurisdiction over specific classes of juvenile offenses. Judicial waiver laws authorize or, sometimes require juvenile judges to remove certain youth from juvenile court jurisdiction to be tried as adults in criminal court Adams, amp; Addie, (2007). The debate over juvenile transfer to adult court it has been waged for many years regarding whether juveniles should be tried and punished in the adult criminal justice system or should be kept within the juvenile system. There are several valid arguments on both sides. Proponents of adult sanctions for juveniles that commit certain crimes state two major goals for juvenile waiver to criminal court. The first was the sentencing hypothesis. This hypothesis states that the juvenile system is too lenient and therefore, it is necessary to transfer juveniles to adult court to give them harsher penalties. The second theory that has been touted as the answer to juvenile crime issues is the deterrence theory. This theory states that if the punishment is severe enough the youth will be less apt to commit crimes or think twice before they do at the very least. The sentencing hypothesis for the most part is unfounded. However, one case that demonstrates that juveniles transferred can get, to a large extent, harsher sanctions in the adult system is defendant Joe Harris Sullivan who was sentenced to life without parole for a non-homicide crime at age 13. This case is one of two cases used to challenge the use of life without parole as unconstitutional. This challenge is based on the eighth amendment’s disproportionality principle that states that the sentence cannot be grossly disproportionate to the crime Hudson, (2009). Sullivan is 33 years old now, confined to a wheelchair, and one of only two people that was sentenced to life without parole at age 13 for and offense that was non-homicide Hudson, (2009). He also still contends that he was not the one who committed the crime and that it was an older co-defendant instead. This case is a good example of the possibility for extremely severe sanctions being given to youth that have been tried in criminal court. Many juveniles transferred to the criminal court receive longer prison sentences in 11 out of 16 categories, than adults who committed comparable crimes Mole, amp; White, (2005). The deterrence hypothesis involves the theory that the fear that a youth can be transferred to adult court and given a sanction such as the one given in the case of Sullivan will make a youth afraid to commit severe crimes. The logic behind this theory is sound, it stands to reason that the threat of severe consequences and the loss of liberty or even life would make anyone think twice before committing a violent or severe crime. The deterrence theory contends that there must be three precepts before achieving deterrence. There must be certainty, severity, and celerity. While some cases that are transferred show severity, and celerity they usually are not certain and many youth receive probation or the case is dropped. The opponents of adult sanctioning for juveniles show considerable reasoning to support their stance on this subject. There are many studies that discount the reasoning that supports the deterrent effects of adult sanctioning and show that it does not deter re-offending patterns among juveniles. There is also reasonable support for not transferring youth based on the lack of maturity and possibility of rehabilitation being higher among youth. Another consideration is the resulting adult incarceration can do considerable damage to youth through learning theories and increased threat of physical assault. The last consideration with respect to supporting non-transfer is the fact that many youth are not transferred for violent offenses in the majority of cases but are transferred for misdemeanor offenses and nonperson offenses. To have a deterrent effect on juveniles there are three guidelines that need to be present to achieve the effect that is desired. While in some cases severity in sentencing for youthful offenders transferred to adult court has been supported many studies find that severe sanctioning of juveniles is not supported by the research. One study found that transferred youth did not receive harsher penalties, were not necessarily imprisoned, and did not necessarily receive longer sentences than their adult or their juvenile counterparts Urbina,,  amp;  White,  (2009). One measure of the deterrent effect is the rates of recidivism for youth waived to adult court. The majority of studies have found either no effect or negative effects on recidivism rates for transferred juveniles. This is supported by Jordan amp; Myers, (2008), Mole amp; White, (2005), Redding, (2010) amp; (1999), Sellers  amp;  Arrigo,  (2009), and Steiner  amp; Wright,  (2006). One study of long term recidivism showed short term recidivism results were comparable to most studies showing higher rates of recidivism for transferred youth but over the long term rates were more matched and showed no significant differences between transferred youth and non-transferred youth Winner, Lanza-Kaduce, Bishop,  amp; Frazier,  (1997). Overall the deterrence theory is not supported by studies. The literature suggests that psychological maturity is not assessed in the waiver process Sellers,  amp;  Arrigo, (2009). The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character, , for a greater possibility exists that a minors character deficiencies can be reformed. Kennedy wrote for the majority in Roper vs. Simmons in 2005 Hudson, (2009). This evidence suggests that juveniles may be committing adult crimes but that they do no grasp the gravity of the consequences and in this should not be exposed to the dangers of the adult prison systems. The damage that can be done to juveniles is much greater than some would expect. There are unintended psychological consequences to diverting youth into the criminal court system. The sight and sound provisions do not apply once the youth is transferred this causes youth to be housed with adult populations Mole, amp; White, (2005). Due to this fact they are 7. 7 times more likely to commit suicide and 5 times more likely to experience sexual assault within the adult prison system Mole, amp; White, (2005). This raises serious concerns about the psychological damage that can be done to a juvenile put into this situation. Ethical considerations and peacemaking values would question this practice from all of the three perspectives of connectedness, caring, and mindfulness. There is also a considerable amount of juveniles that, when interviewed state that they earned more about criminal mores and how to commit crimes from their adult interactions Redding, (2010). When the laws regarding juvenile waiver were enacted their main purpose was to target youth that were either violent offenders or that were repeat offenders that did not respond to treatment given in the juvenile system. However, when these laws were expanded to make transfers easier, it had a profound impact on the population that was effected. The expansion made transfer possible for youth that were not violent and also extended transfer to youth accused of misdemeanor, and even status offenses in some cases. In other words, children were being transferred for the wrong reasons. In 1999 only 34% of youth transferred were for violent person crimes, 40% involved property offenses such as theft, 16% were drug offenses, and 11% were public order offenses Mole, amp; White, (2005). Many of these laws were made as statutory exclusions which took away the courts power of discretion and automatically transferred youth even when it may not have been warranted. All in all many of the youth that are transferred are not necessarily violent offenders and in many cases overall they would be better off in the juvenile system where they would receive the treatment that they desperately need to be successfully reintegrated at some point. Studies even show that the treatment that is denied to youth that are transferred is effective in rehabilitating even the violent offender populations so the consequences to youth that are transferred seems to outweigh any possible benefits Redding, (1999). Conclusion One very important question regarding juvenile transfer laws is do the ends justify the means. In this case the overwhelming evidence shows that juvenile waiver does not accomplish any of the goals that were set for it. Even if the three precepts of certainty, severity, and celerity for deterrence are present and working as they should the main measure of deterrence is the recidivism rates going down to show that juveniles are effectively being deterred from further criminal behaviors due to the harsher sanctions of criminal courts. In this case the overwhelming majority of research points to the fact that waiver to adult court is actually doing more damage than good. When assessing policy implications from the research some important implications are pointed out as a result of research. The first is to limit the use of transfer to violent crimes and consider using evidence based practices and rehabilitation that has been proven to be effective for juveniles instead of waivers that have proven to be ineffective Redding, (1999). The sentencing and deterrence theories that proponents say will occur as a result of juvenile transfer are proven again and again to be ineffective in getting the intended results. Because of the preponderance of evidence that points to the ineffective policy of waiving juveniles to adult criminal courts it makes sense to make these laws only applicable in cases of murder and certain violent crimes. Experts have come up with several reasons why the rates of recidivism are so high for juvenile that are waived they are. * The stigmatization and other negative effects of labeling juveniles as convicted felons. * The sense of resentment and injustice that juveniles feel about being tried and punished as adults. * The learning of the criminal way of life and behaviors while incarcerated with adult offenders. The reduced focus on rehabilitation and family support in the adult system Redding, (2010). From an ethical standpoint the use of juvenile waiver should be reserved for only the worst of the worst offenders and should be applied much more judiciously in the future. Transferring youth into the adult courts does more damage than it is worth and in most cases the e nds do not justify the means.