Trying Juveniles as Adults An Analysis of State Transfer Laws and

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Trying Juveniles as Adults An Analysis of State Transfer Laws and Powered By Docstoc
					U.S. Department of Justice
Office of Justice Programs
Office of Juvenile Justice and Delinquency Prevention

                                  Report Series
                                                                                           September 2011

 This bulletin is part of the
 Juvenile Offenders and
 Victims National Report Series.
                                         Trying Juveniles as
 The National Report offers a
 comprehensive statistical
                                         Adults: An Analysis of
 overview of the problems of
 juvenile crime, violence, and
                                         State Transfer Laws and
 victimization and the response
 of the juvenile justice system.
                                          Patrick Griffin, Sean Addie, Benjamin Adams, and Kathy Firestine
 During each interim year, the
 bulletins in the National                A Message From OJJDP
 Report Series provide access
                                          In the 1980s and 1990s, legislatures in nearly every state expanded transfer laws that
 to the latest information on             allowed or required the prosecution of juveniles in adult criminal courts. The impact of
 juvenile arrests, court cases,           these historic changes is difficult to assess inasmuch as there are no national data sets that
 juveniles in custody, and                track youth who have been tried and sentenced in the criminal justice system. Moreover,
                                          state data are hard to find and even more difficult to assess accurately.
 other topics of interest. Each
                                          In addition to providing the latest overview of state transfer laws and practices, this bulletin
 bulletin in the series high­
                                          comprehensively examines available state-level data on juveniles adjudicated in the criminal
 lights selected topics at the            justice system. In documenting state reporting practices regarding the criminal processing
 forefront of juvenile justice            of youth and identifying critical information gaps, it represents an important step forward in
 policymaking, giving readers             understanding the impact of state transfer laws.

 focused access to statistics             Currently, only 13 states publicly report the total number of their transfers, and even fewer
 on some of the most critical             report offense profiles, demographic characteristics, or details regarding processing and
                                          sentencing. Although nearly 14,000 transfers can be derived from available 2007 sources,
 issues. Together, the National           data from 29 states are missing from that total.
 Report and this series provide
                                          To obtain the critical information that policymakers, planners, and other concerned citizens
 a baseline of facts for juvenile         need to assess the impact of expanded transfer laws, we must extend our knowledge of the
 justice professionals, policy-           prosecution of juveniles in criminal courts. The information provided in these pages and
 makers, the media, and con­              the processes used to attain it will help inform the focus and design of additional federally
                                          sponsored research to that end.
 cerned citizens.
                                                                                                                        Jeff Slowikowski
                                                                                                                    Acting Administrator

                                                              Access OJJDP publications online at
All states set boundaries where childhood ends and
adult criminal responsibility begins
Transfer laws alter the                             with a judge’s approval, based on                impose juvenile dispositions (criminal
usual jurisdictional age                            articulated standards, following a for­          blended sentencing).
boundaries for                                      mal hearing. Even though all states set
                                                    minimum thresholds and prescribe              Nearly all states give
exceptional cases
                                                    standards for waiver, the waiver deci­        courts discretion to
State juvenile courts with delinquency ju­          sion is usually at the discretion of the
risdiction handle cases in which “juve­
                                                                                                  waive jurisdiction over
                                                    judge. However, some states make
niles” are accused of acts that would be            waiver presumptive in certain classes
                                                                                                  individual cases
crimes if “adults” committed them. Gen­             of cases, and some even specify cir­          A total of 45 states have laws designating
erally, these terms are defined solely by           cumstances under which waiver is              some category of cases in which waiver
age. In most states, youth accused of vio­          mandatory.                                    of jurisdiction may be considered, gener­
lating the law before turning 18 years old                                                        ally on the prosecutor’s motion, and
                                                 n	 Prosecutorial discretion or concurrent
come under the original jurisdiction of the                                                       granted on a discretionary basis. This is
                                                    jurisdiction laws define a class of
juvenile courts, whereas those accused of                                                         the oldest and still the most common
                                                    cases that may be brought in either
violating the law on or after their 18th                                                          form of transfer law, although most
                                                    juvenile or criminal court. No hearing
birthdays have their cases processed in                                                           states have other, less traditional forms
                                                    is held to determine which court is
criminal courts. Some states draw the ju­                                                         as well.
                                                    appropriate, and there may be no for­
venile/adult line at the 17th birthday, and
                                                    mal standards for deciding between            Discretionary waiver statutes prescribe
a few draw it at the 16th birthday.
                                                    them. The decision is entrusted entire­       broad standards to be applied, factors
However, all states have transfer laws              ly to the prosecutor.                         to be considered, and procedures to be
that allow or require criminal prosecution       n	 Statutory exclusion laws grant crimi­         followed in waiver decisionmaking and
of some young offenders, even though                                                              require that prosecutors bear the burden
                                                    nal courts exclusive jurisdiction over
they fall on the juvenile side of the juris­                                                      of proving that waiver is appropriate. Al­
                                                    certain classes of cases involving
dictional age line.                                                                               though waiver standards and evidentiary
                                                    juvenile-age offenders. If a case falls
                                                    within a statutory exclusion category,        factors vary from state to state, most take
Transfer laws are not new, but legislative
                                                    it must be filed originally in criminal       into account both the nature of the al­
changes in recent decades have greatly
                                                    court.                                        leged crime and the individual youth’s
expanded their scope. As a result, the
                                                                                                  age, maturity, history, and rehabilitative
transfer “exception” has become a far
                                                 All states have at least one of the above        prospects.
more prominent feature of the nation’s
                                                 kinds of transfer law. In addition, many
response to youthful offending.                                                                   In addition, most states set a minimum
                                                 have one or more of the following:
                                                                                                  threshold for waiver eligibility: generally a
                                                 n	 “Once adult/always adult” laws are a
Most states have                                                                                  minimum age and a specified type or
                                                    special form of exclusion requiring
multiple transfer                                                                                 level of offense, and sometimes a suffi­
                                                    criminal prosecution of any juvenile          ciently serious record of previous delin­
mechanisms                                          who has been criminally prosecuted in         quency. Waiver thresholds are often quite
Transfer laws vary considerably from                the past—usually without regard to            low, however. In a few states—such as
state to state, particularly in terms of flex­      the seriousness of the current offense.       Alaska, Kansas, and Washington—prose­
ibility and breadth of coverage, but all fall    n	 Reverse waiver laws allow juveniles           cutors may ask the court to waive virtual­
into three basic categories:                                                                      ly any juvenile delinquency case. As a
                                                    whose cases are in criminal court to
n	 Judicial waiver laws allow juvenile              petition to have them transferred to          practical matter, however, even in these
    courts to waive jurisdiction on a case-         juvenile court.                               states, waivers are likely to be relatively
    by-case basis, opening the way for                                                            rare. Nationally, the proportion of juvenile
                                                 n	 Blended sentencing laws may either
    criminal prosecution. A case that is                                                          cases in which prosecutors seek waiver is
                                                    provide juvenile courts with criminal
    subject to waiver is filed originally in                                                      not known, but waiver is granted in less
                                                    sentencing options (juvenile blended
    juvenile court but may be transferred                                                         than 1% of petitioned delinquency cases.
                                                    sentencing) or allow criminal courts to

2                                                                                              National Report Series Bulletin
 Most states have multiple ways to impose adult sanctions on offenders of juvenile age
                                          Judicial waiver                    Prosecutorial   Statutory   Reverse    Once an adult     Blended sentencing
 State                    Discretionary Presumptive          Mandatory        discretion     exclusion   waiver    always an adult   Juvenile    Criminal
 Number of states               45               15               15              15            29         24            34            14           18
 Alabama                         n                                                              n                        n
 Alaska                          n               n                                              n                                       n
 Arizona                         n                                                n             n          n             n
 Arkansas                        n                                                n                        n                            n           n
 California                      n               n                                n             n          n             n                          n
 Colorado                        n               n                                n                        n                            n           n
 Connecticut                                                      n                                        n                            n
 Delaware                        n                                n                             n          n             n
 Dist. Of Columbia               n               n                                n                                      n
 Florida                         n                                                n             n                        n                          n
 Georgia                         n                                n               n             n          n
 Hawaii                          n                                                                                       n
 Idaho                           n                                                              n                        n                          n
 Illinois                        n               n                n                             n                        n              n           n
 Indiana                         n                                n                             n                        n
 Iowa                            n                                                              n          n             n                          n
 Kansas                          n               n                                                                       n              n
 Kentucky                        n                                n                                        n                                        n
 Louisiana                       n                                n               n             n
 Maine                           n               n                                                                       n
 Maryland                        n                                                              n          n             n
 Massachusetts                                                                                  n                                       n           n
 Michigan                        n                                                n                                      n              n           n
 Minnesota                       n               n                                              n                        n              n
 Mississippi                     n                                                              n          n             n
 Missouri                        n                                                                                       n                          n
 Montana                                                                          n             n          n                            n
 Nebraska                                                                         n                        n                                        n
 Nevada                          n               n                                              n          n             n
 New Hampshire                   n               n                                                                       n
 New Jersey                      n               n                n
 New Mexico                                                                                     n                                       n           n
 New York                                                                                       n          n
 North Carolina                  n                                n                                                      n
 North Dakota                    n               n                n                                                      n
 Ohio                            n                                n                                                      n              n
 Oklahoma                        n                                                n             n          n             n                          n
 Oregon                          n                                                              n          n             n
 Pennsylvania                    n               n                                              n          n             n
 Rhode Island                    n               n                n                                                      n              n
 South Carolina                  n                                n                             n
 South Dakota                    n                                                              n          n             n
 Tennessee                       n                                                                         n             n
 Texas                           n                                                                                       n              n
 Utah                            n               n                                              n                        n
 Vermont                         n                                                n             n          n                                        n
 Virginia                        n                                n               n                        n             n                          n
 Washington                      n                                                              n                        n
 West Virginia                   n                                n                                                                                 n
 Wisconsin                       n                                                              n          n             n                          n
 Wyoming                         n                                                n                        n
 Note: Table information is as of the end of the 2009 legislative session.

September 2011                                                                                                                                              3
                                                                                                                          In presumptive waiver
    Most states allow juvenile court judges to waive jurisdiction over                                                    cases, the burden of
    certain cases and transfer them to criminal court
                             Any                         Certain Certain Certain Certain
                                                                                                                          proof shifts to the
                          criminal Certain Capital        person property    drug   weapon                                juvenile
    State                 offense felonies crimes Murder offenses offenses offenses offenses
    Alabama                   14                                                                                          In 15 states, presumptive waiver laws de­
    Alaska                   NS                                                                                           fine a category of cases in which waiver
    Arizona                             NS                                                                                from juvenile to criminal court is pre­
    Arkansas                             14         14         14        14                                 14            sumed appropriate. Statutes in these
    California                16                                                                                          states leave the decision in the hands of a
    Colorado                             12                    12        12                                               judge but weight it in favor of transfer. A
    Delaware                 NS
                                                                                                                          juvenile who meets age, offense, or other
    Dist. of Columbia         16         15                                                                 NS
                                                                                                                          statutory thresholds for presumptive
    Florida                   14
                                                                                                                          waiver must present evidence rebutting
    Georgia                   15                    13                   13
    Hawaii                               14                   NS
                                                                                                                          the presumption, or the court will grant
    Idaho                     14        NS                    NS         NS          NS         NS                        waiver and the case will be tried in crimi­
    Illinois                  13                                                                                          nal court.
    Indiana                              14                    10                                16
    Iowa                      14                                                                                          State laws may require
    Kansas                    10
                                                                                                                          juvenile court judges to
    Kentucky                             14         14
    Louisiana                                                  14        14
                                                                                                                          waive jurisdiction in
    Maine                               NS                                                                                certain cases
    Maryland                  15                    NS
                                                                                                                          Fifteen states require juvenile courts to
    Michigan                             14
                                                                                                                          waive jurisdiction over cases that meet
    Minnesota                            14
                                                                                                                          specified age/offense or prior record crite­
    Mississippi               13
    Missouri                             12                                                                               ria. Cases subject to mandatory waiver are
    Nevada                    14         14                                                                               initiated in juvenile court, but the court
    New Hampshire                        15                    13        13                                               has no other role than to confirm that the
    New Jersey                14                               14        14          14          14         14            statutory requirements for mandatory
    North Carolina                       13                                                                               waiver are met.
    North Dakota              16                                         14
    Ohio                                 14                                                                               Functionally, a mandatory waiver law re­
    Oklahoma                            NS                                                                                sembles a statutory exclusion, removing a
    Oregon                               15                   NS         NS          15                                   designated category of cases from juve­
    Pennsylvania                         14                                                                               nile court jurisdiction. However, the juve­
    Rhode Island             NS          16         NS                                                                    nile court may retain power to make
    South Carolina            16         14                   NS         NS                      14         14
                                                                                                                          necessary orders relating to appointment
    South Dakota                        NS
                                                                                                                          of counsel, detention, and other prelimi­
    Tennessee                 16                              NS         NS
                                                                                                                          nary matters.
    Texas                                14         14                                           14
    Utah                                 14
    Vermont                                                    10        10          10                                   Nonjudicial transfer
    Virginia                             14                                                                               cases bypass juvenile
    Washington               NS
                                                                                                                          courts altogether
    West Virginia                       NS                    NS         NS          NS         NS
    Wisconsin                 15         14                    14        14          14          14                       Only 15 states now rely solely on tradi­
    Wyoming                   13                                                                                          tional hearing-based, judicially controlled
    Notes: An entry in the column below an offense category means that there is at least one offense in that cat­         forms of transfer: Connecticut, Hawaii,
    egory for which a juvenile may be waived from juvenile court to criminal court. The number indicates the
    youngest possible age at which a juvenile accused of an offense in that category may be waived. “NS”
                                                                                                                          Kansas, Kentucky, Maine, Missouri, New
    means no age restriction is specified for an offense in that category. Table information is as of the end of the      Hampshire, New Jersey, North Carolina,
    2009 legislative session.

4                                                                                                                      National Report Series Bulletin
North Dakota, Ohio, Rhode Island, Ten­
nessee, Texas, and West Virginia. In these     Some states designate circumstances in which the burden of proof in a
states, all cases against juvenile-age of­     waiver hearing is shifted to the juvenile
fenders (except those who have already                                  Any                         Certain Certain Certain Certain
                                                                     criminal Certain Capital        person property    drug   weapon
been criminally prosecuted once) begin in      State                 offense felonies crimes Murder offenses offenses offenses offenses
juvenile court and must be literally trans­    Alaska                                                                NS
ferred, by individual court order, to courts   California                           14                    14         14           14        14
with criminal jurisdiction.                    Colorado*                            12                    12         12
                                               Dist. Of Columbia†        15                               15         15           15
In all other states, cases against some ac­    Illinois                             15                                                      15
cused juveniles are filed directly in crimi­   Kansas†                   14         14                               14                     14
                                               Maine                                                      NS         NS
nal court. Youth subject to direct criminal
                                               Minnesota                            16
filing in these states may nevertheless be     Nevada†                   14                                          14
entitled to make an individualized case for    New Hampshire                        15                    15         15                     15
juvenile handling at “reverse waiver” hear­    New Jersey                           14                    14         14           14        14          14
ings before criminal court judges. Not all     North Dakota                         14                    14         14                     14
                                               Pennsylvania                                                          14           14
states allow this, however, and others do
                                               Rhode Island*            NS
not allow it in some categories of cases.      Utah                                 16                    16         16           16                    16
                                               * In Colorado and Rhode Island, the presumption is applied against juveniles with certain kinds of histories.
Prosecutors’ discretion                        † In the District of Columbia, Kansas, and Nevada, the presumption applies to any offense committed with a
to opt for criminal                            firearm.

handling is often                              Notes: An entry in the column below an offense category means that there is at least one offense in that
                                               category for which a juvenile is presumed to be an appropriate candidate for waiver to criminal court. The
unfettered                                     number indicates the youngest possible age at which a juvenile accused of an offense in that category is
                                               subject to the presumption. “NS” means no age restriction is attached to the presumption for an offense in
Laws in 15 states designate some cate­         that category. Table information is as of the end of the 2009 legislative session.
gory of cases in which both juvenile and
criminal courts have jurisdiction, so pros­
ecutors may choose to file in either one
court or the other. The choice is consid­      In some states, waiver is mandatory once the juvenile court judge
ered to be within the prosecutor’s execu­      determines that certain statutory criteria have been met
tive discretion, comparable with the                                                                        Certain       Certain      Certain      Certain
                                                                       Certain      Capital                  person       property       drug       weapon
charging decision.
                                               State                  felonies      crimes      Murder      offenses      offenses     offenses     offenses
                                               Connecticut                14          14           14
In fact, prosecutorial discretion laws are
                                               Delaware                   15                       NS           NS           16            16
usually silent regarding standards, proto­
                                               Georgia                                             14           14           15
cols, or appropriate considerations for
                                               Illinois                  15
decisionmaking. Even in those few states       Indiana                   NS                                                                16
where statutes provide some general            Kentucky                   14
guidance to prosecutors, or at least re­       Louisiana                                           15           15
quire them to develop their own decision-      New Jersey                 16                       16           16           16            16           16
making guidelines, there is no hearing, no     North Carolina                         13
                                               North Dakota                                        14           14                         14
evidentiary record, and no opportunity for
                                               Ohio                       14                       14           16           16
defendants to test (or even to know) the
                                               Rhode Island                                        17           17
basis for a prosecutor’s decision to pro­
                                               South Carolina             14
ceed in criminal court. As a result, it is     Virginia                                            14           14
possible that prosecutorial discretion laws    West Virginia              14                       14           14           14
in some places operate like statutory ex­      Notes: An entry in the column below an offense category means that there is at least one offense in that
                                               category for which waiver to criminal court is mandatory. The number indicates the youngest possible age
clusions, sweeping whole categories into
                                               at which a juvenile accused of an offense in that category is subject to mandatory waiver. “NS” means no
criminal court with little or no individual­   age restriction is specified for an offense in that category. Table information is as of the end of the 2009 leg­
ized consideration.                            islative session.

September 2011                                                                                                                                                     5
Statutory exclusion laws
                                               Some states allow prosecutors to file certain categories of cases in
restrict juvenile courts’                      juvenile or criminal court
delinquency jurisdiction                                                  Any                         Certain Certain Certain Certain
                                                                       criminal Certain Capital        person property    drug   weapon
A total of 29 states have statutes that sim­   State                   offense felonies crimes Murder offenses offenses offenses offenses
ply exclude some juvenile-age offenders        Arizona                                 14
from the jurisdiction of their juvenile        Arkansas                                16          14         14          14
                                               California                              14          14         14          14          14           14
courts, generally by defining the term         Colorado                                14                     14          14          14
“child” for delinquency purposes to leave      Dist. of Columbia                                              16          16          16
                                               Florida                     16          16         NS          14          14          14                        14
out youth who meet certain age/offense or
                                               Georgia                                            NS
prior record criteria. Because such youth      Louisiana                                                      15          15          15           15
cannot by definition be “delinquent chil­      Michigan                                14                     14          14          14           14
                                               Montana                                                        12          12          16           16           16
dren,” their cases are handled entirely in
                                               Nebraska                    16         NS
criminal court.                                Oklahoma                               16                      15          15          15           16           15
                                               Vermont                     16
Many states make no distinction between        Virginia                                                       14          14
minors and adults in enforcing traffic,        Wyoming                     13          14                     14          14          14
                                               Notes: An entry in the column below an offense category means that there is at least one offense in that category
boating, hunting, fishing and similar laws     that is subject to criminal prosecution at the option of the prosecutor. The number indicates the youngest possible
and ordinances—and may process all vio­        age at which a juvenile accused of an offense in that category is subject to criminal prosecution. “NS” means no age
                                               restriction is specified for an offense in that category. Table information is as of the end of the 2009 legislative ses­
lations in criminal courts. Statutory exclu­
sion laws are different, however, in that
they make special exceptions for offend­
ing behavior that would otherwise be the       Many states exclude certain serious offenses from juvenile court
responsibility of juvenile delinquency         jurisdiction
                                                                          Any                         Certain Certain Certain Certain
courts.                                                                criminal Certain Capital        person property    drug   weapon
                                               State                   offense felonies crimes Murder offenses offenses offenses offenses
                                               Alabama                                 16          16                                              16
Murder is the offense most commonly
                                               Alaska                                                                     16          16
singled out by statutory exclusion laws. In    Arizona                                 15                     15          15
Massachusetts, Minnesota, and New Mex­         California                                                     14          14
                                               Delaware                                15
ico, exclusion laws apply only to accused
                                               Florida                                                        16          NS          16           16
murderers. In all other states with exclu­     Georgia                                                        13          13
sion statutes, murder is included along        Idaho                                                          14          14          14           14
                                               Illinois                                15                     13          15                                    15
with other serious or violent felonies.        Indiana                                 16                     16          16                       16           16
                                               Iowa                                    16                                                          16           16
Some states exclude less serious offens­       Louisiana                                                      15          15
es, especially where older juveniles or        Maryland                                            14         16          16                                    16
                                               Massachusetts                                                  14
those with serious delinquency histories       Minnesota                                                      16
are involved. Montana law excludes             Mississippi                             13          13
                                               Montana                                                        17          17          17           17           17
17-year-olds accused of a wide range of        Nevada                     16*         NS                      NS          16
offenses, including attempted burglary, at­    New Mexico                                                     15
tempted arson, and attempted drug pos­         New York                                                       13          13          14                        14
                                               Oklahoma                                                       13
session. Mississippi excludes all felonies     Oregon                                                         15          15
that 17-year-olds commit as well as            Pennsylvania                                                   NS          15
                                               South Carolina                          16
armed felonies that juveniles 13 or older      South Dakota                            16
commit. Utah excludes all felonies com­        Utah                                    16                     16
                                               Vermont                                                        14          14          14
mitted by 16-year-olds who have already        Washington                                                     16          16          16
been securely confined once, and Arizona       Wisconsin                                                      10          10
excludes all felonies committed by those       * In Nevada, the exclusion applies to any juvenile with a previous felony adjudication, regardless of the current
                                               offense charged, if the current offense involves the use or threatened use of a firearm.
as young as 15, provided they have previ­
                                               Notes: An entry in the column below an offense category means that there is at least one offense in that category
ously been disposed as juveniles more          that is excluded from juvenile court jurisdiction. The number indicates the youngest possible age at which a juvenile
than once for felony-level offenses.           accused of an offense in that category is subject to exclusion. “NS” means no age restriction is specified for an
                                               offense in that category. Table information is as of the end of the 2009 legislative session.

6                                                                                                       National Report Series Bulletin
In most states, criminal                                         Many states give courts                                   the moving party. Moreover, even in states
prosecution renders a                                            special flexibility in                                    that have a reverse waiver option, it is not
                                                                                                                           necessarily afforded to all transferred
juvenile an “adult”                                              handling youth subject
                                                                                                                           youth: 10 states with reverse waiver laws
forever                                                          to transfer
                                                                                                                           explicitly limit its availability.
There is a special form of “automatic”                           Even states with automatic or prosecutor-
transfer in 34 states for juveniles who                          controlled transfer laws often have com­                  Blended sentencing laws are also designed
have previously been prosecuted as                               pensating mechanisms that introduce                       to provide a measure of individualization
adults. Most of these “once adult/always                         some form of individualized judicial con­                 and flexibility in cases subject to transfer.
adult” laws are comprehensive, mandating                         sideration into the process.
                                                                                                                           Laws in 18 states authorize their criminal
criminal handling of all posttransfer of­
                                                                 The most straightforward of these correc­                 courts, in sentencing juveniles who have
fenses. However, Maryland, Michigan,
                                                                 tive mechanisms is the reverse waiver. A                  been tried and convicted as adults, to im­
Minnesota, and Texas have laws that apply
                                                                 total of 24 states have reverse waiver                    pose juvenile dispositions rather than
only to posttransfer felonies, whereas
                                                                 laws, which allow juveniles whose cases                   criminal ones under some circumstances.
Iowa, California, and Oregon require that
                                                                 are filed in criminal court to petition to                Such “criminal blended sentencing” stat­
the juveniles involved be at least 16.
                                                                 have them removed to juvenile court, ei­                  utes can function somewhat like reverse
Generally, once adult/always adult laws                          ther for trial or disposition. Criminal court             waiver laws, returning transferred juve­
apply only to juveniles who were convict­                        judges deciding reverse waiver motions                    niles on an individual basis to the juvenile
ed of the offenses for which they were                           usually consult the same kinds of stan­                   correctional system for treatment and re­
originally transferred. However, this is not                     dards and weigh the same factors as their                 habilitation. However, they often require
necessary in all states, at least if the origi­                  juvenile court counterparts in discretion­                that a transferred juvenile receive a sus­
nal transfer was based on an individual­                         ary waiver proceedings—but the burden                     pended criminal sentence, over and above
ized judicial determination.                                     of proof may be shifted to the juvenile as                any juvenile disposition. In any case, here
                                                                                                                           again, criminal blended sentencing is
                                                                                                                           commonly authorized only for a subset of
                                                                                                                           those youth who are criminally convicted.
  Some states give juvenile courts power to impose criminal sanctions in
  certain categories of cases                                                                                              Juvenile blended sentencing laws in 14
                             Any                         Certain Certain Certain Certain                                   states are sometimes seen as providing a
                          criminal Certain Capital        person property    drug   weapon                                 “last chance” alternative for youth who
  State                   offense felonies crimes Murder offenses offenses offenses offenses
                                                                                                                           would otherwise be transferred. A youth
  Alaska                                                                   16
  Arkansas                               14                     NS         14                                   14
                                                                                                                           subject to the most common form of ju­
  Colorado                               NS                                NS                                              venile blended sentencing is tried in juve­
  Connecticut                            14                                NS                                              nile court and given a juvenile disposition
  Illinois                               13                                                                                —but in combination with a suspended
  Kansas                     10                                                                                            criminal sentence. Although this may be
  Massachusetts                          14                                14                                   14         preferable to straight criminal handling,
  Michigan                               NS                     NS         NS          NS           NS
                                                                                                                           the practical effects of juvenile blended
  Minnesota                              14
                                                                                                                           sentencing statutes are not well under­
  Montana                                12                     NS         NS          NS           NS          NS
  New Mexico                             14                     14         14          14
                                                                                                                           stood. Because juvenile blended sentenc­
  Ohio                                   10                     10                                                         ing thresholds are actually lower than
  Rhode Island                           NS                                                                                transfer thresholds in most states, there is
  Texas                                  NS                     NS         NS                       NS                     a possibility that such laws, instead of
  Notes: An entry in the column below an offense category means that there is at least one offense in that category        providing a mitigating alternative to trans­
  for which a juvenile may receive a blended sentence in juvenile court. The number indicates the youngest possible        fer, are instead being used for an “in­
  age at which a juvenile committing an offense in that category is subject to blended sentencing. “NS” indicates that,
  in at least one of the offense restrictions indicated, no minimum age is specified. Table information is as of the end   between” category of cases that would
  of the 2009 legislative session.                                                                                         not otherwise have been transferred at all.

September 2011                                                                                                                                                       7
State transfer laws changed radically in the closing
decades of the 20th century
Before 1970, transfer in
                                              “Automatic” transfer laws proliferated in the decades after 1970 …
most states was court-
ordered on a case-by­
case basis                                          Pre-1970:
Laws allowing juvenile courts to waive ju­
risdiction over individual youth, sending
“hard cases” to criminal courts for adult
prosecution, could be found in some of                                                                                                        DC

the earliest juvenile codes and have al­
ways been relatively common. Most states
had enacted such judicial waiver laws by
the 1950s, and they had become nearly
universal by the 1970s.

For the most part, these laws left transfer                                                                        "Automatic"
                                                                                                                   transfer laws (8)
decisions to the discretion of juvenile
court judges. Laws that made transfer               1985:
“automatic” for certain categories—either
by mandating waiver or by requiring that
some charges be filed initially in criminal
court—were rare and tended to apply only                                                                                                      DC
to rare offenses such as murder or capital
crimes. Before 1970, only eight states had
such laws.

Laws giving prosecutors the option to
charge some juveniles in criminal court
were even rarer. Only two states—Florida                                                                           "Automatic"
and Georgia—had prosecutorial discretion                                                                           transfer laws (20)

laws before 1970.
States adopted new
transfer mechanisms in
the 1970s and 1980s                                                                                                                           DC

During the next two decades, automatic
and prosecutor-controlled forms of trans­
fer proliferated steadily. In the 1970s
alone, five states enacted new prosecuto­
rial discretion laws, and seven more
states adopted some form of automatic
transfer.                                                                                                          transfer laws (38)

By the mid-1980s, nearly all states had ju­
dicial waiver laws, 20 states had automat­
                                              Sources: Pre-1970 and 1985 maps adapted from Feld’s The Juvenile Court Meets the Principle of the Offense: 

ic transfer laws, and 7 states had            Legislative Changes to Juvenile Waiver Statutes and Hutzler’s Juveniles as Criminals: 1980 Statutes Analysis.

prosecutorial discretion laws.

8                                                                                                   National Report Series Bulletin
                                                                                                                 The surge in youth
                                                                                                                 violence that peaked in
                                                                                                                 1994 helped shape
                                                                                                                 current transfer laws
… as did prosecutorial discretion laws                                                                           State transfer laws in their current form are
                                                                                                                 largely the product of a period of intense
                                                                                                                 legislative activity that began in the latter
     Pre-1970:                                                                                                   half of the 1980s and continued through
                                                                                                                 the end of the 1990s. Prompted in part
                                                                                                                 by public concern and media focus on
                                                                                                                 the rise in violent youth crime that began
                                                                                                DC               in 1987 and peaked in 1994, legislatures
                                                                                                                 in nearly every state revised or rewrote
                                                                                                                 their laws to lower thresholds and broad­
                                                                                                                 en eligibility for transfer, shift transfer
                                                                                                                 decisionmaking authority from judges to
                                                                                                                 prosecutors, and replace individualized
                                                                                                                 discretion with automatic and categorical
                                                                     discretion laws (2)                         mechanisms.

                                                                                                      Between 1986 and the end of the 1990s,
                                                                                                                 the number of states with automatic
                                                                                                                 transfer laws jumped from 20 to 38, and
                                                                                                                 the number with prosecutorial discretion
                                                                                                DC               laws rose from 7 to 15. Moreover, many
                                                                                                                 states that had automatic or prosecutor-
                                                                                                                 controlled transfer statutes expanded their
                                                                                                                 coverage in such a way as to change their
                                                                                                                 essential character. In Pennsylvania, for
                                                                                                                 example, an exclusion law had been on
                                                                                                                 the books since 1933—but had applied
                                                                     Prosecutorial                               only to cases of murder. Amendments
                                                                     discretion laws (7)
                                                                                                                 that took effect in 1996 transformed what
                                                                                                      had been a narrow and rarely used safety
                                                                                                                 valve into a broad exclusion covering a
                                                                                                                 long list of violent offenses.

                                                                                                DC               In recent years, transfer
                                                                                                                 laws have changed little
                                                                                                                 Transfer law changes since 2000 have
                                                                                                                 been minor by comparison. No major new
                                                                                                                 expansion has occurred. On the other
                                                                                                                 hand, states have shown little tendency to
                                                                     Prosecutorial                               reverse or even reconsider the expanded
                                                                     discretion laws (15)                        transfer laws already in place. Despite the
                                                                                                                 steady decline in juvenile crime and vio­
                                                                                                                 lence rates since 1994, there has as yet
Sources: Pre-1970 and 1985 maps adapted from Feld’s The Juvenile Court Meets the Principle of the Offense: 
     been no discernible pendulum swing away
Legislative Changes to Juvenile Waiver Statutes and Hutzler’s Juveniles as Criminals: 1980 Statutes Analysis.

                                                                                                                 from transfer.

September 2011                                                                                                                                             9
For every 1,000 petitioned delinquency cases, about
9 are judicially waived to criminal court
Juvenile court data
provide a detailed                                The likelihood of judicial waiver among petitioned delinquency cases
                                                  was lower in 2007 than in 1994 for all offense categories and demo­
picture of waiver in                              graphic groups
the U.S.                                                                              Profile of judicially waived          Percentage of petitioned cases
                                                                                          delinquency cases               judicially waived to criminal court
Each year juvenile courts provide detailed        Offense/demographic                    1994               2007                 1994               2007
delinquency case processing data to the           Total cases waived                    13,100             8,500                13,100              8,500
National Juvenile Court Data Archive that
                                                  Most serious offense                  100%               100%
the National Center for Juvenile Justice
                                                  Person                                  42                 48                   2.6%               1.7%
maintains. Using this information, NCJJ           Property                                37                 27                   1.1                0.7
generates annual estimates of the number          Drugs                                   12                 13                   2.1                1.0
and characteristics of cases that juvenile        Public order                             9                 11                   0.6                0.3
court judges waive to criminal court in the       Gender                                100%               100%
nation as a whole. In 2007, using data            Male                                    95                 90                   1.7                1.1
contributed by more than 2,200 juvenile           Female                                   5                 10                   0.4                0.4
courts with jurisdiction over 81% of the          Age at referral                       100%               100%
nation’s juvenile population, juvenile            15 or younger                           13                 12                   0.3                0.2
courts are estimated to have waived juris­        16 or older                             87                 88                   3.0                1.7
diction in about 8,500 cases—less than            Race/ethnicity                        100%               100%
1% of the total petitioned delinquency            White                                   53                 59                   1.2                0.9
caseload.                                         Black                                   44                 37                   1.8                1.0
                                                  Note: These data on cases judicially waived from juvenile court to criminal court do not include cases filed
Nearly half of all cases judicially waived to     directly in criminal court via other transfer mechanisms.
criminal court in 2007 involved a person
                                                  Source: Authors’ analysis of Puzzanchera et al.’s Juvenile Court Statistics 2007.
offense as the most serious charge. Youth
whose cases were waived were over­
                                                n	 Decreases in juvenile violent crime                            involving juvenile-age offenders can
whelmingly males and tended to be older
teens. Although a substantial proportion           reduced the need for waiver. Juvenile                          originate in criminal courts, bypassing
(37%) of waivers involved black youth, ra­         arrests for most crimes, and particu­                          the juvenile courts altogether. During
cial disparity in the use of judicial waiver       larly for Violent Index offenses, have                         the 1990s, law revisions in most states
has diminished. In 1994, juvenile courts           fallen almost every year since 1994.                           exposed more youth to these forms of
waived cases involving black youth at 1.5          Because judicial waiver has historically                       transfer. Because these new laws were
times the rate at which cases involving            served as a mechanism for removing                             generally operating already by the mid­
white youth were waived. By 2007, the              serious and violent offenders from a                           1990s, many juveniles who would pre­
disparity was reduced to 1.1 times the             juvenile system that was seen as ill-                          viously have been candidates for waiv­
white rate.                                        equipped to accommodate them, a                                er were subject to nonwaiver transfer
                                                   reduction in serious and violent crime                         instead. Overall transfer volume after
                                                   should naturally result in some reduc­                         1994 could have stayed the same—or
The use of judicial                                tion in the volume of waivers.                                 even continued to rise—even as waiver
waiver has declined                                                                                               volume declined.
steeply since 1994                              n	 New transfer mechanisms displaced
                                                   waiver. The nationwide proliferation                     It is probable that both of these causes
The number of judicially waived cases hit
                                                   and expansion of nontraditional trans­                   were at work and that declining waiver
a historic peak in 1994—when about
                                                   fer mechanisms also may have con­                        numbers reflect both overall juvenile
13,100 cases were waived—and has
                                                   tributed to the reduction in waivers.                    crime trends and the diminished impor­
fallen 35% since that year. There are two
                                                   In states with prosecutorial discretion                  tance of judicial waiver relative to other
sets of causes that might account for this
                                                   or statutory exclusion laws, cases                       transfer mechanisms.

10                                                                                                     National Report Series Bulletin
Juvenile arrest and judicial waiver trends for serious violent offenses had similar patterns over the past two
Number of arrests                                                                        Number of cases
160,000                                                                                  5,000
140,000                                                                                  4,500
                     Juvenile Violent Crime Index arrests
  80,000                                                                                 2,500
  60,000                                                                                 2,000
  40,000                                                                                                   Judicially waived Violent Crime Index cases
       0                                                                                     0
        1985 1987 1989 1991 1993 1995 1997 1999 2001 2003 2005 2007                           1985 1987 1989 1991 1993 1995 1997 1999 2001 2003 2005 2007

* The Violent Crime Index includes the offenses of murder and nonnegligent manslaughter, forcible rape, robbery, and aggravated assault.

n From the mid-1980s to the peak in 1994, the number of juvenile arrests for Violent Crime Index offenses nearly doubled and then declined substantially through
  2004 (down 39%). This decade-long decline was followed by an 11% increase over the next 2 years, and then a 4% decline between 2006 and 2007.

n Similarly, the number of cases judicially waived for Violent Crime Index offenses tripled between 1988 and 1994 and then declined 57% through 2003. Between
  2003 and 2007, the number of cases waived increased 47%.

Sources: Authors’ analyses of FBI unpublished reports for 1980 through 1997, the FBI’s Crime in the United States reports for 1998 through 2007, and Sickmund et al.’s Easy
Access to Juvenile Court Statistics 2007.

September 2011                                                                                                                                                         11
National information on juvenile cases filed directly
in criminal court is fragmentary
No national data set                              felony cases that involve youth. The BJS-         collected data from 344 counties, generat­
tracks cases that bypass                          sponsored National Survey of Prosecutors          ing a subsample of juvenile-age felony
                                                  (NSP) has likewise been used to collect           cases that, while not statistically represen­
juvenile courts
                                                  basic information on criminal prosecution         tative of all transferred juveniles, was
No data source exists that is comparable          of juveniles in the states.                       large enough to enable researchers to ex­
to the National Juvenile Court Data Ar­                                                             plore ways in which juvenile cases dif­
chive for nonwaiver cases—those in                The SCPS collects demographic, offense,           fered from those of other convicted
which juveniles are processed in criminal         processing, and sentencing information            felons.
court as a result of statutory exclusions or      on felony defendants from a sample of 40
prosecutors’ discretionary choices. Be­           large urban jurisdictions that are repre­         Compared with adult felons, the special
cause they are filed in criminal court like       sentative of the nation’s 75 largest coun­        analysis found, transferred juveniles were
other cases, involve defendants who are           ties. For the 1998 SCPS, BJS used an              more likely than their adult counterparts
“adults” at least for criminal handling pur­      oversampling technique to capture suffi­          to be male (96% versus 84%) and black
poses, and represent an insignificant pro­        cient information on criminally processed         (55% versus 45%). Juveniles were more
portion of the criminal justice system’s          juveniles to support a special analysis of        likely than adults to have a person offense
overall caseload, juvenile cases originating      this subgroup. Although it did not pro­           as their most serious offense at convic­
in criminal court can be very difficult to        duce a sample that was representative of          tion (53% versus 17%) and far less likely
isolate statistically. Legal, definitional, and   the nation as a whole—and so cannot tell          to have a drug offense (11% versus 37%).
reporting variations from state to state          us about juveniles charged in criminal
also make it hard to aggregate what infor­        court with misdemeanors rather than felo­
mation is available. Although several fed­        nies, or those processed outside the               The majority of juvenile felony
erally sponsored criminal processing data         nation’s 75 largest counties—the study             defendants in the 75 largest
collection efforts have shed some light on        did provide useful insight into urban              counties reached criminal court
cases involving juvenile-age offenders, to        transfer cases in which serious offenses           through nonjudicial transfer
date none has been designed to yield reli­        are alleged:                                                                        Percentage of
                                                                                                                                     juvenile felony
able national estimates of the overall vol­                                                          Demographic                       defendants
                                                  n	 Volume. About 7,100 juveniles were
ume and characteristics of these cases.
                                                     criminally processed for felonies in the        Volume                               7,100
As a result, at the national level, a big part
                                                     40 sampled counties during 1998.                Transfer mechanism                  100.0%
of the picture of transfer is missing.
                                                                                                     Judicial waiver                      23.7
                                                  n	 Transfer mechanism. Less than a                 Prosecutor direct file               34.7
BJS research provides                                quarter of the cases reached criminal           Statutory exclusion                  41.6
glimpses of transfer                                 court via judicial waiver. More com­            Most serious charge                 100.0%
case characteristics                                 mon were exclusion cases (42%) and              Violent offense                      63.5
                                                     prosecutorial direct files (35%).               Property offense                     17.7
Available national statistics on criminal                                                            Drug offense                         15.1
processing of juveniles come primarily            n	 Charges. The most serious charge at             Public order offense                  3.5
from a handful of large-scale data gather­           arrest in about half of the cases was           Gender                              100.0%
ing efforts that the federal Bureau of Jus­          either robbery (31%) or assault (21%).          Male                                 95.8
tice Statistics (BJS) sponsors. Both the             The next most common charges were               Female                                4.2
State Court Processing Statistics (SCPS)             drug trafficking (11%) and burglary (8%).       Race                                100.0%
program and the National Judicial Report­                                                            White                                19.9
                                                  n	 Demographics. Defendants were over­
ing Program (NJRP) periodically collect                                                              Black                                62.2
                                                     whelmingly male (96%) and predomi­              Other                                 1.8
detailed information on felony cases in
                                                     nantly black (62%).                             Hispanic                             16.2
state criminal courts. Special analyses of
data from both programs have yielded in­                                                             Source: Authors’ adaptation of Rainville and
                                                  The NJRP collects information on felony            Smith’s Juvenile Felony Defendants in Criminal
formation on the relatively small subset of       sentences in state courts. The 1996 NJRP           Courts: Survey of 40 Counties, 1998.

12                                                                                               National Report Series Bulletin
Most prosecutors’
offices report trying                         Transferred juvenile felons were far more likely than adult felons to be
juveniles as adults                           convicted of violent offenses
The NSP is a regular BJS-sponsored sur­                                                            Transferred
                                              Demographic                                        juvenile felons                   Adult felons
vey of chief prosecutors who try felony
cases in state courts of general jurisdic­    Most serious felony charge                               100%                           100%
tion. Its primary purpose is to collect       Violent offense                                           53                             17
                                              Property offense                                          27                             30
basic information on office staffing, fund­
                                              Drug offense                                              11                             37
ing, caseloads, etc., but several recent
                                              Weapons offense                                            3                              3
surveys have asked respondents whether        Other offense                                              6                             14
their offices proceeded against juveniles
                                              Gender                                                   100%                           100%
in criminal court and, if so, how many        Male                                                      96                             84
such cases were prosecuted in the 12          Female                                                     4                             16
months preceding the survey. The 2005         Race                                                     100%                           100%
NSP, which was a survey of a nationally       White                                                     43                             53%
representative sample of 310 prosecutors,     Black                                                     55                             45
found that about two-thirds of prosecu­       Other                                                      2                              2
tors’ offices tried juveniles in criminal     Source: Authors’ adaptation of Levin, Langan, and Brown’s State Court Sentencing of Convicted Felons, 1996.
court. On the basis of the 2005 respons­
es, it was estimated that about 23,000
juvenile cases had been criminally prose­
cuted nationwide during the 12 months
preceding the survey.                         A new BJS survey will help fill information gaps
                                              on criminal processing of juveniles nationally
Although the NSP information is useful as
                                              BJS recently awarded a new national                     youth. Drawing from a sample of felony
a starting point in assessing the criminal
                                              survey effort to Westat and subcontrac­                 and misdemeanor cases filed against
processing of youth, it must be handled
                                              tor, the National Center for Juvenile                   youth in criminal courts who were
with a certain amount of caution. Respon­
                                              Justice, with the goal of generating ac­                younger than 18—including both trans­
dents were asked to give either the actual
                                              curate and reliable case processing sta­                fer cases and cases involving youth
number of criminally prosecuted juvenile
                                              tistics for juveniles charged as adults.                who are considered adults under their
cases over the preceding 12-month period
                                              The Survey of Juveniles Charged as                      states’ jurisdictional age laws—the sur­
or their best estimates, but there is no
                                              Adults in Criminal Courts will be the                   vey will gather information on offender
way of knowing the basis for any esti­
                                              first effort of its kind that focuses sole­             demographics and offense histories, ar­
mates provided. In any case, the informa­
                                              ly on generating national data on youth                 rest and arraignment charges, transfer
tion elicited gives only an aggregate case
                                              in criminal court; it is likely to contrib­             mechanisms, and case processing and
total and does not contribute to under­
                                              ute substantially to the knowledge re­                  disposition.
standing the characteristics or processing
                                              garding the criminal processing of
of those cases.

September 2011                                                                                                                                        13
Most states do not track and account for all of their
juvenile transfer cases
The Transfer Data                                NCJJ directly with transfer numbers that            of criminally prosecuted youth, the
Project documented                               resided in state information systems or             number of criminal cases involving
                                                 had otherwise been collected at the state           youth, or both—but most report
state transfer reporting
                                                 level but were not made available in public         something more, such as age, race, or
                                                 reports.                                            gender information on transferred
In the absence of any one data source that                                                           youth, how they reached criminal
would make it possible to arrive at an ac­       These data were analyzed along with                 court, what their offenses were, or how
curate estimate of the number of juvenile-       state-published statistics on transfer,             their cases were resolved.
age offenders prosecuted in criminal             yielding the most complete picture cur­
courts nationwide, it is necessary to look       rently available of juvenile transfer and        n	 Publicly report some but not all trans­
instead to a variety of state sources. Un­       transfer-reporting practice in the states.          fers (10 states). Commonly, these
fortunately, information from these scat­        In addition to being summarized in this             states report the number of cases that
tered sources is fragmentary, hard to find,      report, project findings regarding state            are sent to criminal court, following
and harder to analyze.                           transfer and reporting practice will be             waiver proceedings in juvenile court,
                                                 incorporated into the online summary of             but not the number that are filed
In an effort to document reliable sources        state transfer laws found on OJJDP’s                directly in criminal court.
of state-level data on juvenile transfers,       Statistical Briefing Book Web site, http://
identify crucial gaps in available informa­                                                       n	 Contribute data to the National
tion on transferred youth and, if possible,      faqs.asp.                                           Juvenile Court Data Archive but do
fill in the national data picture on transfer,                                                       not otherwise report transfers (14
NCJJ conducted a Transfer Data Project in                                                            states). States that contribute annual
                                                 Only 13 states publicly                             juvenile case processing data to the
2009. The project, a component of the
                                                 report all transfers                                Archive that NCJJ maintains are, in
OJJDP-funded National Juvenile Justice
Data Analysis Project, began with a struc­       From the information that the Transfer              effect, reporting information on judi­
tured search for any published or online         Data Project assembled, it appears that             cially waived cases, although not to the
reports that official sources regularly is­      only a small minority of states currently           public. NCJJ uses these data to pre­
sued within the 1995–2009 time frame             track and report comprehensive informa­             pare national waiver estimates but
and containing any state-level statistics on     tion regarding criminal prosecutions of ju­         does not publish individual state waiv­
criminal prosecution of juveniles. Follow­       veniles. Indeed, only 13 states were                er totals. Accordingly, Archive report­
ing this initial search, project staff con­      identified as publicly reporting even the           ing does not help the field and mem­
ducted a snowball survey of likely data          total number of their transfers, including          bers of the public understand how
keepers in individual states, including          cases of juveniles who reach criminal               individual states’ waiver laws are oper­
contributors to the National Juvenile Court      courts as a result of statutory exclusions          ating in practice.
Data Archive, asking for further informa­        or prosecutors’ discretionary choices as
                                                                                                  n	 Do not report transfers at all (14
tion, clarification, and leads. In all, 63       well as judicial waiver decisions. States
                                                                                                     states). These states do not contribute
officials were contacted via e-mail and          that publish information on the offense
                                                                                                     data on waived cases to the Archive,
telephone followups, including representa­       profiles or demo-graphic characteristics of
                                                                                                     and NCJJ was unable to locate any
tives of state juvenile justice agencies,        these youth, or provide details regarding
                                                                                                     other official reports containing their
state judicial administrative offices, state     their processing or sentencing, are even
                                                                                                     waiver and/or transfer totals. However,
prosecutors’ agencies, and state statistical     rarer.
                                                                                                     officials in five of these states respond­
analysis centers. Most state respondents
                                                 With respect to their reporting of the              ed to NCJJ’s information requests by
referred NCJJ staff to published reports
                                                 number of transfers only, states fall into          sharing recent data on transfer cases
containing pertinent statistics, redirected
                                                 four categories:                                    —which suggests that they already
queries to other state officials, or con­
                                                                                                     collect the pertinent information at the
firmed that the information sought was           n	 Publicly report all transfers (13                state level or, at least, are capable of
not collected at the state level. However,          states). A few of these states report            collecting it.
officials in nine states were able to supply        only a bare annual total—the number

14                                                                                             National Report Series Bulletin
                                                                                                       States are more likely to
 About half of the states publicly report at least some information                                    track judicial waiver
 regarding criminal prosecutions of juveniles
                                                               Contribute to the
                                                                                                       cases than other kinds
                                                              National Juvenile                        of transfers
                                           Publicly report    Court Data Archive
                         Publicly report    some but not     but do not otherwise    Do not report     Relatively speaking, states do a better job
 State                    all transfers     all transfers      report transfers     transfers at all
                                                                                                       of tracking cases that originate in juvenile
 Number of states              13                10                  14                   14
                                                                                                       court and are transferred to criminal court
 Alabama                                                             n
 Alaska                                                              n                                 on an individualized basis. Transfer cases
 Arizona                        n                                                                      that bypass juvenile courts altogether are
 Arkansas                                                                                 n            more commonly “lost” in states’ general
 California                     n                                                                      criminal processing statistics:
 Colorado                                                                                 n
 Connecticut                                                         n                                 n	 Of the 46 states that have judicial
 Delaware                                                                                 n
 District of Columbia                                                n                                    waiver laws, 20 publicly report annual
 Florida                        n                                                                         waiver totals and 13 more report waiv­
 Georgia                                                             n                                    ers to the National Juvenile Court Data
 Hawaii                                                              n
 Idaho                                                                                    n
 Illinois                                        n
                                                                                                       n	 By contrast, of the 29 states with stat­
 Indiana                                                                                  n
 Iowa                                            n                                                        utory exclusion laws requiring criminal
 Kansas                         n                                                                         prosecution of some juveniles, only 2
 Kentucky                                                                                 n               publicly report the total number of
 Louisiana                                       n
                                                                                                          excluded cases, and 5 others report a
 Maine                                                                                    n
 Maryland                                        n                                                        combined total of all criminally prose­
 Massachusetts                                                                            n               cuted cases, without specifying the
 Michigan                       n                                                                         transfer mechanism employed.
 Minnesota                                       n
 Mississippi                                     n                                                     n	 Of the 15 states that have prosecutorial
 Missouri                       n
                                                                                                          discretion laws, only 1 publicly reports
 Montana                        n
 Nebraska                                                                                 n               the total number of cases filed in crim­
 Nevada                                                              n                                    inal court at prosecutors’ discretion,
 New Hampshire                                                                            n               and 4 others report an undifferentiated
 New Jersey                                                          n
                                                                                                          total of all criminally prosecuted cases.
 New Mexico                                      n
 New York                                                            n
                                                                                                       The scarcity of information on cases in­
 North Carolina                 n
 North Dakota                                                                             n            volving youth prosecuted under exclusion
 Ohio                           n                                                                      and prosecutorial discretion laws presents
 Oklahoma                                        n                                                     a serious problem for those wishing to
 Oregon                         n
                                                                                                       assess the workings, effectiveness, and
 Pennsylvania                                    n
 Rhode Island                                                        n                                 overall impact of these laws. Even the few
 South Carolina                                  n                                                     states that provide a count of excluded or
 South Dakota                                                                             n            direct-filed cases seldom report the kind
 Tennessee                      n
                                                                                                       of demographic, offense, sentencing, and
 Texas                          n
 Utah                                                                n                                 other detail that is needed to inform judg­
 Vermont                                                                                  n            ments about whether laws entrusting
 Virginia                                                            n                                 transfer decisions to prosecutors rather
 Washington                     n
                                                                                                       than judges are being applied fairly and
 West Virginia                                                       n
 Wisconsin                                                           n                                 consistently. It is not clear whether these
 Wyoming                                                                                  n            laws are targeting the most serious of­
 Note: Table information is as of 2009.                                                                fenders and resulting in the kinds of sanc­
                                                                                                       tions lawmakers intended. And if these

September 2011                                                                                                                                  15
laws are operating as intended in one
state, are they doing so in all the states      Few states publicly report data on cases transferred by statutory
that rely on such provisions?                   exclusion or prosecutorial discretion
                                                                                   Reports Reports                    Reports             Reports
The absence of information on cases                                      Has        judicial  judicial Has prose­   statutory     Has    statutory
                                                                       judicial    waiver to waiver to cutorial     discretion statutory exclusion
transferred at prosecutors’ discretion is       State                   waiver       public   Archive discretion     to public exclusion to public
particularly troubling. Some prosecutorial      Number of states          46             20     28        15           5         29          7
discretion laws are very broadly written.       Alabama                   n                     n                                n
For example, in Nebraska and Vermont—           Alaska                    n                     n                                n
neither of which currently publish annual       Arizona                   n              n      n          n           k         n          k
                                                Arkansas                  n                                n
transfer statistics—any youth who is at
                                                California                n              n      n          n           k          n         k
least 16 may be prosecuted as an adult at       Colorado                  n                                n
the prosecutor’s option, regardless of the      Connecticut               n                     n
offense alleged. However, even states that      Delaware                  n                                                       n
                                                District of Columbia      n                     n          n
limit prosecutors’ discretionary authority
                                                Florida                   n              n      n          n           k          n         k
to cases involving serious offenses do not      Georgia                   n                     n          n                      n
thereby eliminate the possibility of unfair     Hawaii                    n                     n
or inappropriate use of the authority.          Idaho                     n                                                       n
                                                Illinois                  n              l                                        n         l
Because statutory exclusion laws apply          Indiana                   n                                                       n
                                                Iowa                      n              n                                        n
automatically to all juveniles who come
                                                Kansas                    n              n
within their provisions, they present less      Kentucky                  n
danger of inconsistent, unfair, or inappro­     Louisiana                 n                                n                      n
priate enforcement. However, even appar­        Maine                     n
                                                Maryland                  n              n      n                                 n
ently neutral laws may, in practice, fall
                                                Massachusetts                                                                     n
more heavily on certain groups. Again,          Michigan                  n              n      n          n           n
many exclusion laws apply to very broadly       Minnesota                 n              n                                        n
defined categories—all felony-grade             Mississippi               n              n                                        n
                                                Missouri                  n              n      n
offenses, for example, or all offenses in
                                                Montana                                                    n           k          n         k
high-volume categories like assaults, rob­      Nebraska                                                   n
beries, burglaries, and drug offenses—          Nevada                    n                     n                                 n
that may, in practice, cover a variety of       New Hampshire             n
                                                New Jersey                n                     n
actual crime scenarios, from the very seri­
                                                New Mexico                                                                        n
ous to the relatively trivial. Whether or not   New York                                                                          n
exclusion laws are working as intended—         North Carolina            n                     n
increasing the likelihood of prosecution,       North Dakota              n
                                                Ohio                      n              n      n
conviction, incarceration, and long sen­
                                                Oklahoma                  n              n      n          n                      n
tences, and serving as a deterrent—is a         Oregon                    n              k      n                                 n         k
question of fact that cannot be answered        Pennsylvania              n              n      n                                 n
without more information than is general­       Rhode Island              n                     n
                                                South Carolina            n              n      n                                 n
ly available at present. Additional data are
                                                South Dakota              n                                                       n
also needed to determine whether exclu­         Tennessee                 n              n      n
sion laws (1) impact certain groups more        Texas                     n              n      n
than others, (2) impact large numbers of        Utah                      n                     n                                 n
                                                Vermont                   n                                n                      n
youth whose offense profiles may be less
                                                Virginia                  n                     n          n
serious than those originally envisioned,       Washington                n              n      n                                 n         n
or (3) work differently from one state to       West Virginia             n              n      n
another.                                        Wisconsin                 n                     n                                 n
                                                Wyoming                   n                                n
                                                l Partial reporting (not all jurisdictions).
                                                k Combined total of transfer mechanisms (not separated out).
                                                Note: Table information is as of 2009.

16                                                                                               National Report Series Bulletin
There are wide variations in the ways states
document juvenile transfers
Only a few states report                        n	 Demographics. Eight of the 13 states               Some state-to-state differences in per
significant details about                          provide age, race/ethnicity, gender, or            capita transfer rates are undoubtedly
transfer cases                                     other demographic information on                   linked to differences in jurisdictional age
                                                   criminally prosecuted youth.                       boundaries. The lowest transfer rates
The Transfer Data Project’s search for offi­                                                          among the 13 full-reporting states tend to
cial state data on youth prosecuted as          n	 Offenses. Only three of these states
                                                                                                      be found in the states that set lower age
adults uncovered a broad range of ap­              provide information on the offenses for            boundaries for criminal court jurisdiction
proaches to reporting on transfers, partic­        which youth were transferred.                      (Michigan, Missouri, North Carolina, and
ularly in terms of the completeness and                                                               Texas). In these states, 17-year-olds (or in
                                                n	 Processing outcomes. Only one of
level of detail of the information reported.                                                          the case of North Carolina, 16- and
                                                   these states—California—reports
                                                   information on criminal court handling             17-year-olds) must be taken out of the
Arizona, California, and Florida can be re­
                                                   and disposition of transfer cases.                 mix: They cannot be “transferred” for
garded as exemplary states when it
                                                                                                      criminal prosecution because they are al­
comes to collecting and regularly report­
                                                                                                      ready within the original jurisdiction of the
ing detailed statistics on juveniles tried as   Available data show                                   criminal courts. That leaves a transfer-
adults. Although they do not report exact­      dramatic differences in                               eligible population that is younger and
ly the same things in the same ways, they       states’ transfer rates                                statistically less likely to be involved in se­
do provide the field and the public with
                                                Although the national picture is far from             rious offending. (Of course, if one were
most of the basic information needed to
                                                complete, rough comparisons among the                 simply measuring the extent to which
assess the workings and impact of their
                                                subset of states that do track total trans­           states criminally prosecute youth who are
juvenile transfer laws. Most other states—
                                                fers make it clear that there are striking            younger than 18, these states’ rates would
even among those that regularly track and
                                                variations in individual states’ propensity           be among the highest.)
report their annual juvenile transfer to-
tals—report far fewer details regarding         to try juveniles as adults, even when dif­
                                                                                                      Differences in state transfer rates may
those cases.                                    ferences in juvenile population sizes are
                                                                                                      also be explained, in part, by broad differ­
                                                taken into account.
                                                                                                      ences in the way transfer mechanisms
Although there is no one “right” way to
report information on juvenile transfer
cases, reasonably complete documenta­
tion could be expected to cover each of
                                                  Offense and processing information on transfers is rarely reported
the following general categories:                                                                                                    Processing
                                                  State                   Total volume     Pathways   Demographics     Offenses      outcomes
n	 Total volume. As noted previously,
                                                  Number of states              13           11             8              3              1
   only 13 states report the total number         Arizona                       n             n            n              n
   of cases in which juvenile-age offend­         California                    n             n            n              n              n
   ers are prosecuted in criminal court,          Florida                       n             n            n              n
   the total number of juveniles prosecut­        Kansas                        n             k
                                                  Michigan                      n             n
   ed, or both.
                                                  Missouri                      n             k            n
                                                  Montana                       n                          n
n	 Pathways. Of these 13 states, 5 pro­
                                                  North Carolina                n             k
   vide information showing how transfer          Ohio                          n             k            n
   cases reached the criminal system—             Oregon                        n                          n
   whether by way of judicial waiver,             Tennessee                     n             k            n
   prosecutors’ discretionary decisions,          Texas                         n             k
                                                  Washington                    n             n
   or as a result of statutory exclusions.
                                                  k Waiver-only states.
   In six others, judicial waiver was the
                                                  Note: Table information is as of 2009.
   only transfer mechanism available.

September 2011                                                                                                                                    17
work. In the six reporting states (Kansas,               states with large urban centers, significant                  discretionary authority.) However, both
Missouri, North Carolina, Ohio, Tennes­                  crime, and a broadly similar array of                         Arizona and California prosecutors also
see, and Texas) that have only judicial                  transfer laws, official reports from the                      have broad prosecutorial discretion provi­
waiver laws—even including those in                      three states make clear that they have                        sions, suggesting that aggressive use of
which some waivers are mandated—aver­                    markedly different approaches to transfer.                    prosecutorial discretion in Florida may be
age transfer rates are generally lower than                                                                            a factor as well.
                                                         Overall rates. The three states differ dra­
those in the remaining seven states,
                                                         matically in their per capita transfer                        Transfer pathways. Although Florida has
which have statutory exclusion laws,
                                                         rates—with Florida being the clear outlier.                   an extremely broad and flexible judicial
prosecutorial discretion laws, or both.
                                                         Over the period from 2003 through 2008,                       waiver provision—authorizing waiver for
However, it can be difficult to account for              Florida transferred youth at about twice                      any offense, providing the juvenile was at
state transfer rate variations on the basis              the rate of Arizona and about eight times                     least 14 at the time of commission—judi­
of legal structures alone. For instance,                 the rate of California. (In fact, Florida’s                   cial waiver is a relatively insignificant
Tennessee appears to transfer juveniles                  rate was about five times the average                         transfer mechanism there, accounting for
far more often than Kansas (although                     transfer rate in the other 12 states that                     only about 4% of total transfers from
both are waiver-only states) and, if any­                publicly reported total transfers during                      2003 to 2008. In Arizona, 14% of trans­
thing, Tennessee law imposes more re­                    this period.) One part of the explanation is                  fers came by way of waiver, but waivers
strictions on the juvenile court’s power to              undoubtedly Florida’s expansive prosecu­                      steadily declined over that period, both in
waive jurisdiction.                                      torial discretion law, which permits prose­                   absolute terms and as a proportion of
                                                         cutors to opt for criminal handling of,                       total transfers.
Average annual transfer rate,* 2003–2008:
                                                         among others, all 16- and 17-year-olds
Florida                                   164.7          accused of felonies. (Only Nebraska                           In California, by contrast, about 40%
Oregon                                     95.6          and Vermont give prosecutors more                             of transfers from 2003 to 2008 were
Arizona                                    83.7
Tennessee                                  42.6
Montana                                    41.6
Kansas                                     25.3
Washington                                 21.2          California reports detailed case-processing outcomes for transferred youth
Missouri                                   20.9
California                                 20.6                                                                                                          Prison/Youth
Ohio                                       20.4                                                                                                       Authority sentence
Michigan                                   12.4                                                               Convictions                                   (43%)
Texas                                       8.6                                                                 3,407
North Carolina                              7.1                                                                 (74%)
*Cases per 100,000 juveniles ages 10 to upper age of                                                                                                           296
juvenile court jurisdiction.                                                                                                                                  (9%)
Notes: Table is intended for rough comparison only.                                                               23
Unit of count varies from state to state. Some states               Adult                                       (0.5%)
report by fiscal year, some by calendar year. Transfer           dispositions                                                                         Probation with jail
volume was unavailable for Montana in 2005, 2006,                (2003–2008)                                                                                1,136
and 2008 and for Washington in 2008.                                4,604                                     Dismissal/                                   (33%)
Detailed transfer                                                                                                                                              Jail
reporting in some                                                                                            Certified to                                     (2%)
states makes indepth                                                                                        juvenile court
comparison possible                                                                                             (1%)                                          Fine
Because they document their juvenile                                                                                                                         (10%)
transfers more thoroughly than other
states, data from Arizona, California, and                                                                                                            Other/not reported
Florida provide a considerably more nu­                                                                                                                      110
anced picture of transfer in practice. Even
though all three are populous “sunbelt”
                                                         Source: Authors’ analyses of California Office of the Attorney General reports available online.

18                                                                                                               National Report Series Bulletin
waivers. California prosecutors may make      ethnic mix was quite different. In Florida,    Transfers for property offenses were less
a motion for “fitness hearings” for any       most transferred youth in 2008 were            common in those states (25% in Arizona,
16- or 17-year-old, regardless of the of­     black (54%), whereas whites (29%) and          15% in California), as were transfers for
fense alleged, and for younger offenders      Hispanics (12%) were considerably un­          drug offenses (6% in Arizona, 4% in Cali­
accused of more serious offenses. More­       derrepresented. By contrast, transfers         fornia).
over, where youth are accused of serious      were predominantly Hispanic in Arizona
offenses or have serious prior records,       (57%) and California (56%).                    Case outcomes. As noted above, no com­
they may be presumed to be unfit for ju­                                                     parison is possible among the three states
venile court handling and must affirma­       Offenses. In all three states, the vast ma­    with regard to the crucial issue of what
tively prove otherwise. Perhaps because       jority of transfers involved felonies rather   happens to transferred youth—only Cali­
this shifting of the burden of proof makes    than misdemeanors. In 2008, 98% of re­         fornia reports processing outcomes in
the fitness hearing route easier for prose­   ported transfers in Arizona, 89% in Cali­      transfer cases. However, because pro­
cutors, it is frequently used and is fre­     fornia, and 94% in Florida involved            cessing outcome information on transfer
quently successful: 71% of all fitness        felonies, but transfer offenses in the three   cases is so rare, it is worth noting that,
hearings from 2003 to 2008 resulted in        states differed substantially. In Florida,     over the period from 2003 through 2008,
remand to criminal court.                     only 44% of reported 2008 transfers in­        about three-quarters of cases involving ju­
                                              volved person offenses, whereas 31%            veniles disposed in California’s criminal
Demographics. In 2008, a majority of          involved property offenses and 11% in­         courts resulted in convictions. Following
transfers involved youth who were at least    volved drug offenses. Transfers were far       conviction, youth were sentenced to some
age 17 in Florida (65%), Arizona (55%),       more likely to involve person offenses in      form of incarceration (in a prison, jail, or
and California (56%), but the racial and      Arizona (60%) and California (65%).            California Youth Authority facility) in al­
                                                                                             most 8 of 10 cases.

September 2011                                                                                                                      19
Nearly 14,000 transfers can be accounted for in
2007—but most states are missing from that total
                                               States with extremely broad nonjudicial
The size of the gaps in                                                                                         transfer total that would be comparable to
                                               transfer laws. At the other extreme, laws                        California’s published total in a typical
available transfer data                        in two states—Nebraska and Vermont—                              year.
can be broadly estimated                       authorize criminal prosecution of any 16-
On the basis of juvenile court case pro­       or 17-year-old youth, at the prosecutor’s                        Other states. In the remaining 21 states,
cessing data reported to the National          option, regardless of the offense alleged.                       nonjudicial transfer provisions are much
Juvenile Court Data Archive, 8,500 judicial    In a third state—Wyoming—prosecutors                             broader in scope than those in the first
waivers are estimated to have occurred         have discretion to prosecute all misde­                          group but not so broad as those in the
nationwide in 2007. The six states that        meanants in criminal court, as long as                           second. Youth are subject to nonjudicial
track and report all of their nonjudicial      they are at least 13 years old. Laws of this                     transfer in these states for a range of of­
transfers as well—Arizona, California,         exceptionally broad type are likely to gen­                      fenses or offense types, all far more com­
Florida, Michigan, Oregon, and Washing­        erate large numbers of transfer cases,                           mon than homicide. Nevertheless, they
ton—reported an additional 5,096 non-          even though the states involved are not                          must meet some minimum threshold of
judicial transfer cases in 2007. Unpublished   populous ones. In fact, criminal court data                      offense seriousness. Some states within
state-level information that Idaho provided    from Vermont, analyzed by NCJJ as part                           this middle group list specific offenses
to the Transfer Data Project contributed       of a one-time study for that state’s Agency                      qualifying for nonjudicial transfer. In oth­
some 20 additional nonjudicial transfers       for Human Services, found nearly 1,000                           ers, nonjudicial transfer laws do not mere­
to the 2007 total of 13,616.                   cases in which 16- and 17-year-old Ver­                          ly apply to named offenses but also to
                                               mont youth were handled as adults in a                           felony offenses generally, or at least to fel­
A great deal is missing from this total,       single year—a contribution to the nation’s                       onies of a particular grade or grades.
however—including nonjudicial transfers
in the 29 other states that have statutory
exclusion or prosecutorial discretion laws       Among states that do not track and report nonjudicial transfers, the
but do not publish statistics on criminal        number unaccounted for depends on the scope of each state’s laws
                                                                        Nonjudicial transfer         Nonjudicial        Nonjudicial transfer Prosecutorial
prosecution of juveniles and were not able
                                                                         only for extremely          transfer for        for all felonies or discretion limited
to provide the Transfer Data Project with        State                     rare offenses           listed offenses       range of felonies     solely by age
data from which 2007 totals could be de­         Number of states                  5                       16                    5                   3
rived. These 29 states fall into three basic     Alabama
groups.                                          Arkansas                                                                       n
                                                 Colorado                                                  n
States with extremely narrow nonjudicial         Delaware                                                  n
                                                 Dist. Of Columbia                                         n
transfer laws. In five of these states,          Georgia                                                   n
transfer by means other than judicial            Illinois                                                  n
                                                 Indiana                                                                        n
waiver must be a very rare event. Massa­         Iowa                                                      n
chusetts, Minnesota, and New Mexico              Louisiana                                                 n
                                                 Maryland                                                  n
have statutory exclusion provisions, but         Massachusetts                     n
                                                 Minnesota                         n
they apply only to juveniles accused of          Mississippi                                                                    n
homicide. Utah has an exclusion law that,        Montana                                                   n
                                                 Nebraska                                                                                            n
apart from homicide cases, covers only           Nevada                                                    n
felonies that inmates in secure custody          New Mexico                        n
                                                 New York                                                  n
commit. Wisconsin’s exclusion applies            Oklahoma                                                  n
only to homicides and cases involving as­        Pennsylvania                                              n
                                                 South Carolina                                                                 n
saults committed against corrections,            South Dakota                                                                   n
probation, and parole personnel. Even            Utah                              n
                                                 Vermont                                                                                             n
without knowing more, the authors can            Virginia                                                  n
predict that the contribution to the na­         Wisconsin                         n
                                                 Wyoming                                                                                             n
tion’s nonjudicial transfer total from these
                                                 Note: Table information is as of the end of the 2009 legislative session.
five states would be insignificant.

20                                                                                                        National Report Series Bulletin
Jurisdictional age laws may “transfer” as many as
175,000 additional youth to criminal court
In13 states, youth                                17th birthday. The number of youth             court. On the basis of age-specific delin­
become criminally                                 younger than 18 prosecuted as adults in        quency petition rates, one would expect
                                                  these states—not as exceptions, but as a       about 145,000 youth younger than 18 to
responsible before their
                                                  matter of routine—can only be estimated.       have been criminally prosecuted in the 13
18th birthdays
                                                  But it almost certainly dwarfs the number      states in 2007.
Although it is important to have an idea of       that reach criminal courts as a result of
the number and characteristics of juve­           transfer laws in the nation as a whole.        It is possible to refine this rough estimate
niles who are prosecuted as adults under                                                         somewhat further. To account for the fact
state transfer laws, it should be remem­                                                         that different groups are formally pro­
                                                  A total of 2.2 million                         cessed in court at different rates, one can
bered that most criminal prosecutions in­
                                                  youth younger than 18                          control not only for age but also for sex
volving youth younger than 18 occur in
                                                  are subject to routine                         and race. If one applies age-, sex-, and
states that limit the delinquency jurisdic­
tion of their juvenile courts so as to ex­
                                                  criminal processing                            race-specific petition rates to the popula­
clude all 17-year-olds—or even all                The authors do not know the number of          tion involved, an estimated 159,000 youth
16-year-olds—accused of crimes. States            youth prosecuted as adults in states that      who were younger than 18 were prosecut­
have always been free to define the re­           set the age of adult responsibility for        ed in criminal courts in the 13 states in
spective jurisdictions of their juvenile and      crime at 16 or 17 for many of the same         2007.
criminal courts. Nothing compels them to          reasons that they do not know the num­         One can also take population density into
draw the line between “juvenile” and              ber of youth prosecuted as adults under        account. The estimation procedure that
“adult” at the 18th birthday; in fact, there      transfer laws. However, rough estimates        NCJJ used to produce national data on ju­
are 13 states that hold youth criminally          are possible, based on population data         venile court processing characteristics
responsible beginning with the 16th or            and what is known about the offending          uses the county as the unit of aggrega­
                                                  behavior of 16- and 17-year-old youth.         tion. As part of the multiple-imputation
  Upper age of original juvenile                  In 2007, there were a total of 2.2 million     and weighting process, all U.S. counties
  court jurisdiction, 2007                        16- and 17-year-olds who were consid­          are placed into one of four strata on the
  Age     State                                   ered criminally responsible “adults” under     basis of the size of their youth population,
  15      Connecticut,* New York, North           the jurisdictional age laws of the states in   and specific rates are developed for age/
          Carolina                                                                               race groups within each of the strata. If
                                                  which they resided. If one applies age-
  16      Georgia, Illinois,** Louisiana,                                                        we apply similar age-, race-, and strata-
          Massachusetts, Michigan, Missouri,      specific national delinquency case rates
                                                  (the number of delinquency referrals per       specific petition rates to this population,
          New Hampshire, South Carolina,
          Texas, Wisconsin                        1,000 juveniles) to this population group      we arrive at an estimate of 175,000 cases
  17      Alabama, Alaska, Arizona,               —and assume that they would have been          involving 16- or 17-year-olds tried in
          Arkansas, California, Colorado,
                                                  referred to criminal court at the same         criminal court in the 13 states in 2007.
          Delaware, District of Columbia,
          Florida, Hawaii, Idaho, Indiana,        rates that 16- and 17-year-olds are re­        It should be noted again, however, that all
          Iowa, Kansas, Kentucky, Maine,          ferred to juvenile courts in other states      of these estimates are based on an as­
          Maryland, Minnesota, Mississippi,       —then as many as 247,000 offenders             sumption that is at least questionable: that
          Montana, Nebraska, Nevada,              younger than age 18 would have been re­
          New Jersey, New Mexico, North                                                          juvenile and criminal courts would re­
          Dakota, Ohio, Oklahoma, Oregon,
                                                  ferred to the criminal courts in 2007.         spond in the same way to similar offend­
          Pennsylvania, Rhode Island, South                                                      ing behavior. In fact, it is possible that
          Dakota, Tennessee, Utah, Vermont,
                                                  To determine the number of youth who
                                                  are actually criminally prosecuted in the      some conduct that would be considered
          Virginia, Washington, West Virginia,
          Wyoming                                 13 states, delinquency case rates may be       serious enough to merit referral to and
                                                  less pertinent than delinquency petition       formal processing in juvenile court—such
  * Upper age of original jurisdiction is being
  raised from 15 to 17: the transition will be    rates—that is, the age-specific rates at       as vandalism, trespassing, minor thefts,
  complete by 2012.                                                                              and low-level public order offenses—
  ** Upper age rose from 16 to 17 for those       which youth are formally processed in
  accused of misdemeanors only, effective 2010.   (rather than merely referred to) juvenile      would not receive similar handling in
                                                                                                 criminal court.

September 2011                                                                                                                          21
Juveniles in most states can be jailed while awaiting
trial in criminal court
Contact with adult
inmates is sometimes                             Most states allow but do not require transferred youth to be held
but not always restricted                        pretrial in adult jails rather than juvenile detention centers
                                                                            Jailing of     Minimum age,                   Use of jails
Depending on state law, local practice,                                 transferred youth special condition,               mandated             Youth–adult
                                                                        allowed pending     or court order               under some              separation
and such factors as the age of the ac­           State                    criminal trial       required                 circumstances             required
cused, juveniles who are confined while          Number of states                48                     15                     14                     18
awaiting criminal trial may be held in juve­     Alabama                         n                                             n
                                                 Alaska                          n
nile detention facilities or adult jails.        Arizona                         n                                                                    n
                                                 Arkansas                        n
A total of 48 states authorize jailing of ju­    California                      n                      n                                             n
veniles who are awaiting trial in criminal       Colorado                        n                      n                                             n
                                                 Connecticut                     n                                             n
court. In 14 of these states, use of adult       Delaware                        n                      n                      n
jails rather than juvenile detention facili­     District of Columbia            n
ties for pretrial holding of transferred ju­     Florida                         n                                             n                      n
                                                 Georgia                         n                      n                                             n
veniles is mandated, at least in some            Hawaii                          n                                             n
circumstances; in the rest, the use of jails     Idaho                           n                                             n                      n
                                                 Illinois                        n                      n                                             n
is allowed but not required. Sometimes a
                                                 Indiana                         n
special court order or finding is required       Iowa                            n                      n                                             n
for jail holding, and sometimes a minimum        Kansas                          n                                                                    n
                                                 Kentucky                        n                                                                    n
age. For example, California requires a          Louisiana                       n                                             n
finding that a youth’s pretrial detention in     Maine                           n                      n
an ordinary juvenile facility would endan­       Maryland                        n                                             n                      n
                                                 Massachusetts                   n                      n
ger the public or other juvenile detainees.      Michigan                        n                      n                                             n
In Illinois, a juvenile must be at least 15 to   Minnesota                       n
be held in jail, and a court must specifical­    Mississippi                     n
                                                 Missouri                        n                                             n
ly order it. New Jersey requires a special       Montana                         n                                                                    n
hearing, comparable to a transfer hearing,       Nebraska                        n                      n
                                                 Nevada                          n
before jail holding may be ordered. On the       New Hampshire                   n                                             n
other hand, some states, such as Idaho           New Jersey                      n                      n
and Tennessee, generally mandate use of          New Mexico                      n                                             n
                                                 New York                        n                      n
jails for pretrial confinement when juve­        North Carolina
niles are processed as adults but empow­         North Dakota                    n
er courts to order the use of juvenile           Ohio                            n                                                                    n
                                                 Oklahoma                        n                                             n                      n
detention centers in individual cases.           Oregon                          n                      n
                                                 Pennsylvania                    n
Laws in 18 of the states that allow jail         Rhode Island                    n
                                                 South Carolina                  n                      n
holding of juveniles specify that they
                                                 South Dakota                    n                                                                    n
must be kept from contact with adult jail        Tennessee                       n                                             n                      n
inmates. Transferred youth in most states        Texas                           n
                                                 Utah                            n                                                                    n
may also be held in juvenile detention fa­       Vermont                         n                      n
cilities, either routinely or pursuant to        Virginia                        n
court orders in individual cases.                Washington                      n
                                                 West Virginia
                                                 Wisconsin                       n                                             n
                                                 Note: New Mexico and Washington provisions apply only to previously convicted juveniles. Table information is as
                                                 of the end of the 2009 legislative session.

22                                                                                                     National Report Series Bulletin
A 2009 survey found                                         where ordinary criminal court jurisdiction
                                                            begins at age 16 or 17. Moreover, the                   Federal law prohibiting
that more than 7,000                                                                                                holding of juveniles with
                                                            total does not take account of inmates
youth who were younger                                                                                              adults does not apply to
                                                            who were accused of offenses committed
than 18 were in jails                                                                                               transferred juveniles
                                                            while younger than 18 but were already
Federal data collections shed some light                    older than 18 by the time of the survey.                The Juvenile Justice and Delinquency
on state approaches to pretrial holding                                                                             Prevention (JJDP) Act of 1974, as
of transferred youth. The BJS-sponsored                     The Census of Juveniles in Residential
                                                                                                                    amended, generally requires, as a
Annual Survey of Jails (ASJ) provides a                     Placement (CJRP) provides a one-day
                                                                                                                    condition of federal funding for state
one-day snapshot of the population con­                     population count of the nation’s juvenile
                                                                                                                    juvenile justice systems, that juvenile
fined in jails nationwide. According to the                 facilities, including those normally used
                                                                                                                    delinquents and status offenders not
most recent ASJ, at midyear 2009 the na­                    for detaining youth pending trial in the
                                                                                                                    be confined in jails or other facilities
tion’s jails held a total of 7,220 inmates                  juvenile system. The most recent CJRP
                                                                                                                    in which they have contact with in­
who were younger than 18, including                         found that, as of the 2007 census date,
                                                                                                                    carcerated adults who have been
5,847 who had been tried or were await­                     a total of 1,101 individuals being held in
                                                                                                                    convicted or are awaiting trial on
ing trial as adults—less than 1% of the                     juvenile residential facilities nationwide
                                                                                                                    criminal charges. However, regula­
total jail population.                                      were awaiting proceedings in criminal
                                                                                                                    tions interpreting the JJDP Act pro­
                                                            court, in addition to 303 who were await­
However, this cannot be considered an                                                                               vide that juveniles who are being
                                                            ing transfer hearings. Taken together,
exact count of “transferred juveniles” in                                                                           tried as adults for felonies or have
                                                            these youth made up about 1.6% of the
jail because many of these inmates who                                                                              been criminally convicted of felonies
                                                            residents of the nation’s juvenile facilities.
were younger than 18 were held in states                                                                            may be held in adult facilities without
                                                                                                                    violating this “sight and sound sepa­
                                                                                                                    ration” mandate. Juveniles who have
                                                                                                                    been transferred to the jurisdiction of
                                                                                                                    a criminal court may also be con­
Between 2005 and 2009, an average of 5,700 juveniles were held as adults                                            fined with other juveniles in juvenile
in local jails—less than 1% of all inmates                                                                          facilities without running afoul of the
                                                                                                                    JJDP Act mandate. However, once
       Number of juveniles                                                                                          these youth reach the state’s maxi­
                Juveniles held as adult inmates in local jails                                                      mum age of extended juvenile juris­
       6,000                                                                                                        diction, they must be separated from
                                                                                                                    the juvenile population.

       4,000                                                                                                        The proposed Juvenile Justice and
                                                                                                                    Delinquency Prevention Reauthoriza­
                                                                                                                    tion Act of 2009, currently pending
       2,000                                                                                                        before Congress, would eliminate the
                                                                                                                    special exception that permits jail
                                                                                                                    holding of transferred juveniles while
            0                                                                                                       they await proceedings in criminal
                     2005               2006              2007              2008               2009
                                                                                                                    court. Effective 3 years from the en­
                                                                                                                    actment of the Reauthorization Act,
Note: Authors’ adaptation of Minton’s Jail Inmates at Midyear 2009—Statistical Tables, Prison and Jail Inmates at
Midyear.                                                                                                            the sight and sound separation man­
                                                                                                                    date would apply to such youth. They
                                                                                                                    could not be jailed with adults unless
                                                                                                                    a court of competent jurisdiction,
                                                                                                                    after considering a number of indi­
                                                                                                                    vidualized factors, had determined
                                                                                                                    that the interests of justice
                                                                                                                    required it.

September 2011                                                                                                                                            23
Convicted juveniles do not always receive harsher
sanctions in the adult system
Sentencing and                                   youth received sentences involving incar­                  NJRP data and 1998 SCPS data, compar­
correctional handling of                         ceration in jail or prison, whereas only                   ing sentences that transferred juvenile fel­
transferred youth vary                           40% of the nontransferred youth received                   ons received with sentences that adult
                                                 dispositions involving placement in juve­                  felony defendants received, found no such
from state to state
                                                 nile correctional facilities. Of those con­                consistent pattern of age-based leniency.
There are few national sources of informa­       victed in criminal court of violent offenses,              Both studies found that transferred juve­
tion regarding what happens to youth             79% were sentenced to incarceration,                       niles convicted of violent felonies were
once they are transferred to criminal            whereas only 44% of those adjudicated                      about as likely as adults to be sentenced
courts. Even the most basic question—            delinquent for violent offenses received                   to some form of incarceration. At least in
whether convicted youth are sanctioned           juvenile dispositions involving placement.                 the NJRP sample, juveniles convicted of
more severely in the adult system than           Similar criminal-juvenile differences were                 property and weapons offenses were con­
they would have been in the juvenile sys­        found in sanctions received by property                    siderably more likely to be incarcerated
tem—is difficult to answer, as various           offenders (57% incarcerated in the crimi­                  than adult property and weapons offend­
studies focusing on individual jurisdic­         nal system versus 35% in the juvenile                      ers. Moreover, even though the NJRP
tions have yielded inconsistent results.         system), drug offenders (50% versus                        analysis showed that transferred juveniles
On the one hand, most studies have con­          41%), and public order offenders (60%                      were sentenced to shorter maximum pris­
cluded that criminal processing of these         versus 46%).                                               on terms than were adults for sexual
youth is more likely to result in incarcera­                                                                assault, burglary, and drug offense con­
tion and that periods of incarceration that      A separate issue is whether, by reason of                  victions, they received longer prison
criminal courts impose tend to be longer.        their age, juveniles in criminal court re­                 terms than adults did for murder and
However, a few have found no such differ­        ceive more lenient sentencing treatment                    weapons offense convictions.
ences in sentencing severity. In any case,       than adult defendants. Analyses of 1996
it is likely that juvenile-criminal sentencing
differences are largest in states that crimi­      Among felony defendants convicted of property and weapons offenses,
nally prosecute only the most serious              transferred juveniles were far more likely than adults to be sentenced to
juvenile offenders. In states with transfer        prison terms
laws that apply to a broader range of less                                           Profile of felony                      Mean maximum sentence
                                                   Offense/                         sentence imposed                           length (in months)
serious offenses, one would expect the
                                                   defendant                  Total Prison Jail Probation                   Prison Jail Probation
adult system to regard transferred youth
more lightly—and perhaps more lightly              All offenses
                                                   Transferred juveniles      100%       60%        19%         21%            91          6          44
than the juvenile system would.
                                                   Adults                     100        37         23          40             59          6          38
Special analyses of data from the State            Violent offenses
Court Processing Statistics Program                Transferred juveniles      100        75          9          15            118          8          55
                                                   Adults                     100        78          5          17            101          7          46
(SCPS) and the National Judicial Report­
                                                   Property offenses
ing Program (NJRP) have shed some light
                                                   Transferred juveniles      100        46         27          27             39          6          43
on the ways in which criminal sentencing           Adults                     100        18         28          54             46          6          38
of transferred juvenile felons compares            Drug offenses
with dispositions of nontransferred youth          Transferred juveniles      100        31         36          33             30          6          29
on the one hand, and with sentencing of            Adults                     100        34         28          38             47          6          39
adult criminals on the other. In the first         Weapons offenses
comparison, data on juvenile felony defen­         Transferred juveniles      100        55         20          25             48          6          26
dants from the 1990, 1992, and 1994                Adults                     100        39         17          44             42          5          31
                                                   Other offenses
SCPS sample were contrasted with data
                                                   Transferred juveniles      100        37         43          20             48          6          33
on youth formally processed in the juve­
                                                   Adults                     100        22         37          41             41          6          36
nile courts of the same large urban juris­
                                                   Source: Authors’ adaptation of Levin, Langan, and Brown’s State Court Sentencing of Convicted Felons, 1996.
dictions. Overall, 68% of the transferred

24                                                                                                    National Report Series Bulletin
Convicted youth may                             State prisons, the bulk                                   nationwide. About 46% of these inmates
sometimes serve part of                         of them in the South,                                     were held in prisons in southern states.
their sentences in                              held more than 2,700                                      Although many of these youth were un­
juvenile facilities                             juveniles in 2009                                         doubtedly convicted following prosecution
States take a variety of correctional ap­       At mid-year 2009, the National Prisoner                   under state transfer laws, more than half
proaches with criminally convicted youth        Statistics Program, which collects one-                   were held in states where ordinary crimi­
who receive sentences of incarceration,         day snapshot information on state prison                  nal court jurisdiction begins at age 16 or
including straight incarceration in adult fa­   inmates, counted a total of 2,778 inmates                 17 rather than 18.
cilities with no distinction between minor      younger than age 18 in state prisons
and adult inmates, segregated incarcera­
tion in special facilities for underage of­
fenders, and graduated incarceration that       Half of inmates younger than 18 held in state prisons come from states
begins in juvenile facilities and is followed   with a younger age of criminal responsibility
by later transfer to adult ones. According
to juvenile correctional agencies respond­
ing to a 2008 survey that the Council of
Juvenile Correctional Administrators con­
ducted, in about two-thirds of states,
juveniles who have been convicted and
sentenced to incarceration by criminal
courts may serve some portion of their
sentences in juvenile correctional

Several states set a statutory minimum                                                                                More than 100 (10)
age—typically 16—for commitment to an                                                                                 50 to 100 (7)
adult correctional facility. In Delaware, for                                                                         15 to 50 (11)
                                                                                                                      5 to 15 (7)
example, a youth younger than 16 who                                                                                  Less than 5 (15)
has been sentenced to a term of impris­
onment must be held initially by the              State              Inmates*          State               Inmates*          State               Inmates*
state’s Division of Youth Rehabilitation          U.S. total            2,778          Upper age 17           1,368          Montana                  1
                                                                                       Alabama                  118          Nebraska                21
Services and then transferred to the
                                                  Upper age 15            737          Alaska                     7          Nevada                 118
state’s Department of Corrections upon            Connecticut             332          Arizona                  157          New Jersey              21
reaching his or her 16th birthday.                New York                190          Arkansas                  17          New Mexico               3
                                                  North Carolina          215          California                 0          North Dakota             0
The 2007 Census of Juveniles in Residen­                                               Colorado                  79          Ohio                    86
                                                  Upper age 16            673          Delaware                  28          Oklahoma                19
tial Placement counted a total of 761 in­
                                                  Georgia                  99          Florida                  393          Oregon                  13
mates in juvenile residential facilities who      Illinois                106          Hawaii                     2          Pennsylvania            61
had been convicted in criminal court and,         Louisiana                15          Idaho                      0          Rhode Island             1
presumably, were either serving their             Massachusetts             8          Indiana                   54          South Dakota             1
                                                  Michigan                132          Iowa                      13          Tennessee               22
sentences or awaiting transfer to adult           Missouri                 31          Kansas                     5          Utah                     6
facilities.                                       New Hampshire             0          Kentucky                   0          Vermont                  4
                                                  South Carolina           89          Maine                      0          Virginia                16
                                                  Texas                   156          Maryland                  58          Washington               2
                                                  Wisconsin                37          Minnesota                 13          West Virginia            0
                                                                                       Mississippi               28          Wyoming                  1
                                                  * Reported number of inmates younger than age 18 held in custody in state prisons, 2009.

                                                  Source: Authors’ adaptation of West’s Prison Inmates at Midyear 2009—Statistical Tables, Prison and Jail
                                                  Inmates at Midyear.

September 2011                                                                                                                                               25
Transfer laws generally have not been shown to
deter crime
Some research suggests                         prosecuted youth with those of youth             in finding these effects for all offense
that transfer may                              handled in the juvenile system, has              types—leaving open the possibility that
increase subsequent                            uncovered what appear to be counter-             criminal prosecution may work for some
                                               deterrent effects of transfer laws. Six          kinds of young offenders and not work for
                                               large-scale studies summarized by Red­           others. In fact, a 2010 comparison, by
Given the many practical ways in which         ding—employing a range of different              Schubert and others, of rearrest outcomes
state transfer laws vary in their scope and    methodologies and measures of offend­            for transferred and nontransferred youth
operation, blanket statements about their      ing, and focusing on a variety of jurisdic­      found that, whereas transfer appeared to
effects should be read with caution. How­      tions, populations, and types of transfer        have no effect on rearrest rates for the
ever, insofar as these laws are intended to    laws—have all found greater overall recid­       sample as a whole, transferred person of­
deter youth crime generally, or to deter or    ivism rates among juveniles who were             fenders had lower rearrest rates than their
reduce further criminal behavior on the        prosecuted as adults than among matched          nontransferred counterparts.
part of youth subjected to transfer, re­       youth who were retained in the juvenile
search over several decades has generally      system. Criminally prosecuted youth were         Although transfer laws in general have not
failed to establish their effectiveness.       also generally found to have recidivated         been shown to work (that is, improve
                                               sooner and more frequently. Poor out­            public safety by reducing serious crime
Research on the general deterrence ef­                                                          through specific or general deterrence), it
                                               comes like these could be attributable to a
fects of transfer laws—their tendency to                                                        is not clear whether this conclusion ap­
                                               variety of causes, including the direct and
discourage the commission of offenses                                                           plies to all transfer laws equally because
                                               indirect effects of criminal conviction on
subject to transfer and criminal prosecu­                                                       the key studies have been conducted in
                                               the life chances of transferred youth, the
tion—has not produced entirely consis­                                                          only a handful of states. Again, it should
                                               lack of access to rehabilitative resources
tent results. Most studies have not found                                                       be remembered that transfer laws vary
                                               in the adult corrections system, and the
reductions in juvenile crime rates that can                                                     considerably, and their effects are unlikely
                                               hazards of association with older criminal
be linked to transfer laws. One multistate                                                      to be uniform. It may be that some trans­
analysis by Levitt concluded that there                                                         fer provisions—targeting certain offenses
could be a moderate general deterrent ef­      However, some critics have raised the            or resulting in certain sanctions—are more
fect, and studies based on interviews with     possibility that the observed greater reof­      effective in deterring crime than others.
juveniles, conducted by Redding and Full­      fending on the part of transferred youth is
er and by Glassner and others, suggest         simply a consequence of group differenc­         The data gathered under BJS’s new Sur­
the possibility that transfer laws could       es between transferred and nontransferred        vey of Juveniles Charged in Adult Criminal
deter crime if sufficiently publicized. How­   youth—not an effect of transfer but a            Courts should significantly contribute to
ever, the weight of the evidence suggests      “selection bias” that could not be correct­      our understanding of the national impact
that state transfer laws have little or no     ed for, given the limited information and        of state transfer mechanisms but is un­
tendency to deter would-be juvenile crimi­     statistical controls available to research­      likely to support state-level analyses.
nals. Possible explanations include juve­      ers. (See, for example, Meyers’ study            Better state-level data are necessary to
niles’ general ignorance of transfer laws,     “The Recidivism of Violent Youths in Ju­         support the state-specific research that is
tendency to discount or ignore risks in        venile and Adult Court: A Consideration of       clearly needed to shed light on the impact
decisionmaking, and lack of impulse            Selection Bias.”)                                and workings of each state’s transfer
control.                                                                                        laws.
                                               The studies finding that transfer had
A separate body of research, comparing         counterdeterrent effects did not all agree
postprocessing outcomes for criminally

26                                                                                           National Report Series Bulletin

Adams, B., and Addie, S. 2010. Delinquency           Justice, Office of Justice Programs, Bureau of          Responses to Serious and Violent Juvenile Crime.
Cases Waived to Criminal Court, 2007. OJJDP          Justice Statistics.                                     Washington, DC: U.S. Department of Justice,
Fact Sheet. Washington, DC: U.S. Department of                                                               Office of Justice Programs, Office of Juvenile
                                                     Perry, S. 2006. Prosecutors in State Courts,
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                                                     2005. Washington, DC: U.S. Department of
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                                                     Justice, Office of Justice Programs, Bureau of          Torbet, P., and Szymanski, L. 1998. State Legisla­
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arrest statistics reports for 1980 through 1997.                                                             97 Update. Washington, DC: U.S. Department
                                                     Puzzanchera, C., Adams, B., and Sickmund,
                                                                                                             of Justice, Office of Justice Programs, Office of
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                                                                                                             Juvenile Justice and Delinquency Prevention.
in the United States for the years 1998 through      burgh, PA: National Center for Juvenile Justice.
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                                                     Rainville, G., and Smith, S. 2003. Juvenile Felony
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                                                                                                             Midyear. Washington, DC: U.S. Department of
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                                                                                                             Justice Statistics.
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Juvenile Justice Commission, Children and Family     Department of Justice, Office of Justice Programs,      Michigan State Court Administrative Office.
Council for Prevention Programs. Pittsburgh, PA:     Bureau of Justice Statistics.                           Available at
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                                                     Szymanski, L., and Thomas, D. 1996. State

September 2011                                                                                                                                               27
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                     National Report Series Bulletin                                                                        NCJ 232434

  This Bulletin was written by Patrick
  Griffin, Senior Research Associate, Sean                                                       The Office of Juvenile Justice and Delinquency
                                               This Bulletin was prepared under cooperative
  Addie, Policy Analyst, Benjamin Adams,                                                         Prevention is a component of the Office of
                                               agreement number 2008–JF–FX–K071 from the
  Research Associate, and Kathy                                                                  Justice Programs, which also includes the
                                               Office of Juvenile Justice and Delinquency
  Firestine, Research Assistant, at the        Prevention (OJJDP), U.S. Department of Justice.   Bureau of Justice Assistance; the Bureau of
  National Center for Juvenile Justice,                                                          Justice Statistics; the National Institute of
  with funds provided by OJJDP to sup­         Points of view or opinions expressed in this      Justice; the Office for Victims of Crime; and
  port the National Juvenile Justice Data      document are those of the authors and do not
                                                                                                 the Office of Sex Offender Sentencing,
  Analysis Project.                            necessarily represent the official position or
                                                                                                 Monitoring, Apprehending, Registering, and
                                               policies of OJJDP or the U.S. Department of