Encyclopedia of Psychology and Law

judge) recognize the decision error and plan a pretrial

hearing in criminal court, which then allows the crimi-

nal court judge to transfer jurisdiction and send the

youths back to juvenile court.

There is also the potential for blended sentencing,

wherein the trial occurs in one setting, but sentencing

occurs in a different setting or combination of settings.

Such a system may result in the imposition of both

juvenile and criminal sanctions for the same offense.

All these mechanisms are attempts to balance the need

for protecting society against the recognition that

children may possess diminished capacity compared

with adults and therefore deserve a judicial process

that takes such factors into account.

Legal Standards for

Transfer to Adult Court

With each of the mechanisms for transfer, it is required

that the judge apply a “standard” to determine whether or

not the youth should be tried in adult court. The laws

controlling waiver of court jurisdiction require hearings

to address whether evidence supports the statutory crite-

ria for waiver. Many states have two to three levels of

legal standards for waiver of jurisdiction. The first is a set

of simple threshold conditions that must be met before

going further (e.g., age, being charged with a certain

offense, having a special history of prior offenses). If the

threshold measures are met, then courts in most states

can proceed to the point at which they apply

one of typically three standards, which are often referred

to as (1) public safety or danger to others,

(2)amenability to rehabilitation,and (3) the best interest

of the child/community.Many of these standards have a

similar meaning. Specifically, they are attempting to bal-

ance the development of the youth against the protection

of society. For instance, the danger to othersstandard

requires that youths not be waived to criminal court

unless they present a serious risk of harm to others. The

same standard would generally be applied in reverse

waiver (requiring that the youth not present a serious risk

of harm if the waiver were approved). The amenability to

rehabilitation standard allows the court to waive jurisdic-

tion and remand the youth for criminal court trial only if

the youth is found to be not amenable to rehabilitation

within the resources of the juvenile court (as stated in

Kent v. United States) and/or “is not a fit and proper sub-

ject” for juvenile custody. Each of these criteria men-

tioned above are drawn from the eight criteria listed in

Kent v. United States. The best interest of the child/com-

munity standard requires that the juvenile court judge

consider issues such as dangerousness and amenability

and attempt to provide the best placement for the youth.

Finally, it appears that increasingly states do not list a

broader standard but rather list the specific Kent-like cri-

teria to be considered before transferring a youth to adult

court. All three standards exist because of a concern for

risk of harm to the public.

Criteria Underpinning the

Standards: The KKeennttCriteria

Under each standard within state statutes, there is a set

of criteria that judges consider to address the legal stan-

dard. Many of these factors listed in state statutes

mimic Kent criteria. Specifically, in Kent v. United

States, the U.S. Supreme Court recommended eight

factors, and most states have etched some permutation

of these factors into the statutes or case law. The Kent

criteria can be separated into straightforward legal cri-

teria and others that are psychological or psycholegal in

content. For example, some Kent criteria—such as

whether the case has prosecutorial merit or the desir-

ability of trial in criminal court because the case

involves adult associates—are primarily factors that the

judges can easily determine without any psychologi-

cal input. Therefore, forensic clinicians do not need to

provide input pertaining to direct legal factors. Other

elements of Kent that concern danger to others,

sophistication maturity,and amenability to treatment

are pertinent psychological constructs for which judges

often request psychological evaluations and input.

Psychology’s Link to Juvenile

Waiver Considerations

Historically, clinical forensic psychologists have been

central participants in the evaluation of youths who

were facing transfer. Psychologists are often asked to

provide information about the risk the youths pose to

society, their level of maturity, and the degree to

which they are amenable to treatment. If the youths

are amenable, psychological reports and/or testimony

then are responsible for providing a road map for

change and, in relation, recommend where this change

could occur. Traditionally, these questions have been

answered by clinical interview alone. More recently,

juvenile assessment tools have been designed for the

assessment of young offenders that may be helpful

in guiding assessment in this area. For example, the

Structured Assessment of Violence Risk for Youth, the

Youth Level of Service/Case Management Inventory

Waiver to Criminal Court——— 861

W-Cutler (Encyc)-45463.qxd 11/18/2007 12:44 PM Page 861