Pretrial Procedures (PowerPoint)

					    Pretrial Procedures
 Transfer hearings
 Detention

 Intake

 Diversion

 Petition and pretrial release

 Bail and preventive detention

 Plea bargaining (adjustment)
 Transfer to adult court
 Transfer, waiver, bindover, removal
 Concurrent jurisdiction

 Excluded offenses (traffic, serious)
    – Number of excluded offenses has
   Judicial waiver to adult court
          Kent v. U.S.
 Waived to adult court, despite requests
  for a psychiatric evaluation, access to
  social service file, motions for a
 Found guilty in adult court for
  housebreaking and robbery, not guilty
  by reason of insanity for rape
    Kent v U.S. (1966)
 Court ruled that cases of waiver
 A hearing

 Access to counsel and access by
  counsel to social service records
 Reason for the decision
         Criteria to be
 Seriousness of offense
 Aggressive or violent

 Maturity of juvenile

 Record of the juvenile

 Public protection

 Potential for rehabilitation
       Breed v. Jones
 Petition filed and he was adjudicated
 Found unfit for juvenile court at
  disposition hearing
 Transferred to adult court

 Found guilty

 U.S. Supreme Court determined that
  this was double jeopardy (5th
    Transfer hearings
 Full hearing
 Notice

 Right to counsel

 Statement for reasons
    Debate over transfer
 Get tough vs. rehabilitation
 1% now transferred (drugs most
 Cases waived increased in early
  1990s, number has now been
 Waivers do not necessarily increase
  public protection; result may be the
  same in both juvenile and adult court
 In one study., only 3% of juveniles
  tried in adult court received longer
  sentences than they would have
  received in juvenile court (1996)
 However, in another study those
  waived to adult court received
  significantly greater sentences than
  those retained in juvenile court (1986)
 Another problem is that transfers might
  be motivated by political
  considerations rather than the case
 One study found that juveniles
  transferred to adult court no more
  dangerous than those retained
 Transfer decisions not consistent:
  appears to be racial disparity
 Problem of prosecutorial discretion: in
  some jurisdictions prosecutor makes
  the decision
 Need for transfer for very serious
  cases: juvenile justice system not set
  up to deal with such cases
 Juveniles transferred have greater
  security risks, less swift punishment,
  lower conviction rates, shorter
  incarceration, higher recidivism
 Temporary care of youths by the state
  in a physically restricted facility
  pending court disposition or transfer to
  another placement
 Shelter care: temporary care in
  physically unrestricting facilities
 Movement to remove status offenders
  and dependent/neglected to less
  secure facilities, such as temporary
  foster care
 60% of detainees are delinquent

 Many status offenders are runaways

 Increasing number of drug offenses
 Increase in the use of detention
 Majority are detained briefly and
  released to parents, screened by
  intake probation officers
 No uniform criteria for detention
 Race, class and # of parents might
  have an influence
    Detention decision
 NCCD recommends that the standards
  should be: likelihood of new offense, a
  danger to themselves or community, or
  likelihood of running away
 Most jurisdictions require a detention
  hearing to extend the period of
  detention beyond 24 hours
       Detention hearing
 This hearing should be:
 Without delay

 Right to notice and counsel

   Provision of services
    Detaining juveniles in
         adult jails
 More common in rural areas
 Risk of victimization

 Few services

 Juvenile Justice and Delinquency Act
  amended in 1989 to require states to
  remove juveniles from adult jails
 Not clear how often this happens—
  most common estimate 100,000/year
 Screening of cases by the juvenile
  justice system
 Decisions: send the youth home,
  diversion, file a petition, file a petition
  and detain
 Consent decrees and informal
  probation or informal adjustment
 Considerations: age, offense, prior
  record, cooperativeness of child and
  parents, whether the youth can get
  appropriate services elsewhere
 Legal rights?

 Intake traditionally handled by juvenile
 Increased role of the prosecutor
 Screening out children from the
  juvenile court without judicial decision
 Roots: labeling theory

 Common criteria for diversion:
  nonviolent or status offender, or
  alcohol or drug problem, age, no
  serious priors
 Variety of mechanisms through
  probation, the court, the prosecutor.
  Successful participation necessary to
  avoid court action
 In some jurisdictions, 50% of youths
  are diverted
 Net widening
 Filing a petition—can be filed by
  police, parents, probation, or other
  social service agency
 If the child admits to the allegations, a
  hearing might be scheduled and a
  treatment plan developed
 Otherwise, adjudication hearing set
 Probation does an assessment
 Right to notice (youth, counsel and
 Continued detention?

 No right to bail, because it is a civil
  proceeding, can be released to
  parents, detention is supposed to be
  rehabilitative, not punitive
 Some states do allow for bail for
 All the problems of the bail system
  then apply
 Without bail, youths have few rights
    Preventive detention
   Detaining a person because of his/her
    suspected danger to the community and
    because he/she might commit more crimes
   Can a person be detained for acts he/she
    has not yet committed?
   Supreme Court eventually upheld
    preventive detention for adults, but it is
    seldom explicitly applied
    Preventive detention
   All states do allow for the preventive
    detention of juveniles, because
    although adults have a right to liberty,
    juveniles have a right to custody, and
    can be detained for their own
       Schall v. Martin
 Detention based on prediction of future
  behavior not a violation of due process
 Must be procedural safeguards, such
  as notice, a hearing and a statement of
  facts, before placement in detention
      Plea bargaining
 Not a part of the juvenile court
  originally, not seen as necessary
  because the court was there to help
 Increasing role of the prosecutor

 Most states have now addressed and
  regulate the practice, but the amount
  of regulation varies widely
 More formal in urban areas
         Plea Bargaining
   Considerable debate over whether it should
    be used in the juvenile system
   It appears to be much less common in the
    JJS as compared to the adult system, but
    on the increase
   Less common because some of the
    incentives to plea bargain are less important
    in the juvenile system (I.e. dropping a felony
    to a misdemeanor)