the juvenile justice system no longer has jurisdiction),
the law allows juvenile court judges to waive jurisdic-
tion. This then alleviates any potential threat the child
or adolescent might pose to public safety with regard to
escape from less secure facilities or at the time of
mandatory release.
Third, when a youth’s rehabilitation is considered
unlikely, it has been argued that the state has an inter-
est in avoiding the use of its limited rehabilitation
resources. Historically, waiver has been an acceptable
legal mechanism for avoiding the use of existing
resources when even the usually effective treatments
would be unlikely to result in rehabilitation. However,
the courts are also expected to think of creative ways
to help youths change their behavior.
Fourth, until the waiver and transfer laws were
enacted, it was legally presumed that all juveniles below
a certain age (typically 18 years) were insufficiently
mature to be held criminally responsible for their anti-
social acts. Youths below this age were automatically
treated as juveniles under the parens patriae philosophy.
This guiding principle remains as a presumption, but
one that is debatable depending on the juvenile’s level of
maturity. Thus, juveniles may be transferred if they are
viewed as mature participants in a criminal act. Maturity
is often considered in conjunction with risk of future
offending and treatment amenability.Mechanisms for Transfer:
Routes to and From Juvenile Courts
There are different mechanisms by which the justice
system achieves transfer. Transfer mechanisms can be
grouped into three categories: judicial (upward)
waiver, statutory exclusion, and direct file. Transfer
mechanisms are determined by state law, and states
may use any combination of mechanisms to meet per-
ceived societal needs and policy goals.
Judicial waiver is the most common method for trans-
ferring cases to adult criminal court, with 45 states allow-
ing for transfer of certain types of cases on the basis of
juvenile court judges’ decisions about the appropriate-
ness of transfer. Under this method, juvenile court judges
make a determination as to whether the juvenile should
be tried in juvenile court or transferred to adult court.
Juvenile court judges may consider a range of factors in
making this decision, including psychological evalua-
tions that address the psychological characteristics of
the youth as they pertain to Kentcriteria.
Two other mechanisms by which youths may be
transferred to criminal court for trial exist. Thesemechanisms, which were introduced in the 1990s,
include statutory exclusion and prosecutorial direct file.
At present, 29 states provide a statutory exclusion. In
these states, offenders above a certain age or accused of
certain types of crime (serious offenses such as murder
and assault) are automatically outside the jurisdiction
of the juvenile court. In these cases, the charge is filed
directly in adult criminal court without any input from
juvenile court judges, a formal juvenile hearing, or an
evaluation of the youth’s characteristics. This mecha-
nism, which is available in 25 states, removes the dis-
cretion of the juvenile court judges from the transfer
process entirely.
The second transfer mechanism, which was adopted
in 15 states in the late 1980s and early 1990s, is called
prosecutorial direct file. This mechanism allows prose-
cutors to file charges against youths in either juvenile or
criminal court for certain types of offenses. Similar to
automatic transfer, prosecutorial direct file does not
allow for a hearing at the juvenile level, nor is there any
evaluation of the youth prior to the prosecutor’s filing
of the case directly in adult criminal court. Recent esti-
mates of the percentage of juveniles transferred to adult
court under each type of transfer indicate that although
newer routes have been introduced, judicial transfer
from juvenile courts remains a relatively common
mechanism for transfer. Waiver rates differ based on the
types of crimes committed and what is occurring in var-
ious communities with respect to the level of juvenile
violence.
A protective transfer mechanism is now in place in
some states if a decision error occurs during the trans-
fer process. In some states where criminal courts
receive transferred youths by statutory exclusion or
direct file, judges may view the youths as amenable to
treatment in the juvenile justice system and/or possibly
too immature to be processed in adult criminal court; at
this point, juvenile court judges have the opportunity to
reverse the transfer or decertify the youths. This option
is available in 25 states and serves as a safety net for
youths who are inappropriately transferred to criminal
court. It is interesting that in some states where judicial
transfer from juvenile courts (upward waiver) is used,
reverse transfer is an option. However, this special case
of the reverse transfer is rare and only occurs in 6 states.
In sum, the reverse transfer process, available in
25 states, serves as a protective mechanism for youths
who are inappropriately transferred to adult courts (e.g.,
if they are immature, amenable to treatment, or incom-
petent to stand trial); however, this mechanism typi-
cally requires that some authority (attorney and/or the860 ———Waiver to Criminal CourtW-Cutler (Encyc)-45463.qxd 11/18/2007 12:44 PM Page 860