Sentencing Authority

Traditionally, the focus of the juvenile justice system has been on the rehabilitation of the juvenile. The juvenile court was seen as the common guardian of the youth who came before it, and the court was charged with ensuring that the child's best interests were considered when determining the proper disposition of a juvenile case. As a result, individuals adjudicated in the juvenile justice system were not subject to the same punitive standards and stringent sentences commonly imposed in adult criminal court. As violent juvenile crime and recidivism have increased, incapacitation in the interest of public safety and deterrence have become important system goals. State trends indicate that punishment and accountability have become equally important, if not primary, priorities in juvenile justice policy.²⁶⁵

A number of States have created "blended" sentencing structures for cases involving serious and repeat juvenile offenders as a mechanism for holding these youth accountable for their offenses, while retaining the court's ability to provide the most effective sanction option. According to its recent report on State responses to violent youth crime, NCJJ has defined these blended sentencing measures as "the imposition of juvenile and/or adult correctional sanctions to cases involving serious and violent juvenile offenders who have been adjudicated in juvenile court or convicted in criminal court."²⁶⁶ In other words, this expanded sentencing authority may allow criminal and juvenile courts to impose either juvenile or adult sentences, or both, in cases involving juveniles.

One type of blended sentence allows juvenile courts to levy both juvenile and adult sanctions or dispositions simultaneously, while suspending the adult sanction. If the youth follows the conditions of the juvenile sentence and commits no further violation, the adult sentence is revoked. This type of sentencing authority has become popular in recent years, with Connecticut, Kentucky, and Minnesota among the States adopting this type of sentencing authority since 1994. In Minnesota, a system of intermediate sanctions was developed as a result of recommendations made by a State supreme court task force that facilitated major juvenile justice reform in 1994. Based on the newly created extended jurisdiction of juvenile prosecution (EJJP), juvenile court judges can impose both a juvenile dispositional order and an adult criminal sentence, with the latter stayed on the condition that the offender not violate the provisions of the juvenile disposition order and not commit a new offense. Under EJJP, youth up to age 21 may be under continuing juvenile court jurisdiction. Sanctions for these youth are suited to meet individual needs, and if a participant violates the conditions of the stayed sentence or is alleged to have committed a new offense, the court may revoke the stay without notice and activate the adult sentence.²⁶⁷

Extensive juvenile justice revision in Connecticut (1995) and Kentucky (1996) mandates similar code provisions. As a result of these reform initiatives, the juvenile court may now impose both a juvenile and an adult sentence, with the latter being stayed on the condition that the youth neither violates the conditions of the juvenile sentence nor commits a new offense. If a violation occurs, the court may revoke the stay, revoke the probation, and direct that the juvenile be taken into immediate custody.²⁶⁸

In Texas, the juvenile court may impose a juvenile sanction that extends beyond the extended age of juvenile justice system jurisdiction (21), at which time transfer of the offender to an adult correctional facility is required. The terms of this statutory sentencing scheme mandate that a grand jury consider the original petition charging the youth and require a 12-person jury to determine guilt or innocence. Under this expanded sentencing authority, the juvenile court judge or jury is able to impose a sentence of up to 30 years, depending on the seriousness of the crime. After sentencing, the juvenile is held in a secure Texas Youth Commission facility until he reaches the age of majority, at which time, as a result of new legislation enacted in 1995, the youth may be required to complete the full term of the sentence. This broad jurisdiction of the juvenile court was augmented further by the 1995 legislation, which added several offenses for which a juvenile may receive a determinate, fixed term of up to 40 years.²⁶⁹

Other types of sentencing initiatives allow the adult criminal court to levy a wide array of dispositions including juvenile sanctions -- on youth offenders who are transferred to its jurisdiction. According to ILJ research, adult court judges in 12 States have this authority for some offenders, usually those who have committed less violent crimes.²⁷⁰ In Florida, where the provisions for transferring a youth to adult criminal court were made easier in 1994, the legislature also gave the criminal court broader discretion in its sentencing authority by allowing it to levy both juvenile and adult dispositions on the youth appearing before it. Now, the criminal court judge is presented a report by the Department of Corrections and the Department of Juvenile Justice on the sentencing options for the offender within both systems. This, coupled with statutorily defined factors, guides the judge's determination of whether to impose juvenile or adult sanctions on the offender.²⁷¹

The State of Missouri in 1995 created a sentencing system much like the reform initiatives in Connecticut and Kentucky, under which the adult criminal court may levy both a juvenile and an adult sentence, as opposed to this authority being vested in the juvenile court. The new law allows juveniles ages 12 to 17 to be transferred to adult criminal court for various felony offenses or if the youth is found to be a habitual offender. The criminal court judge may impose simultaneously a juvenile and criminal sentence, with the latter being stayed on the condition that the youth successfully completes the term of the juvenile disposition.²⁷²

Another common way the adult criminal court can levy juvenile sanctions is through the creation of youthful offender programs. These systems, otherwise known as "intermediate" or "third systems," provide a mechanism that allows States to impose strict, adult sanctions on juveniles or young adults convicted of violent crimes, while maintaining a rehabilitative focus. Since the State of Colorado enacted the first program of this type in 1993, at least 11 other States have followed suit.²⁷³ Participation in youthful offender-type programs is an option for offenders deemed by a judge to deserve one last chance before being sent to an adult facility. Youthful offenders are able to reach these intermediate systems, typically components of adult corrections departments, when an adult criminal court judge suspends a regular adult criminal sanction for a juvenile waived to criminal court or when a young adult convicted of a crime is believed to be particularly amenable to rehabilitation.

A premise of many youthful offender programs is that effective sanctions for more violent juveniles are those that emphasize a wide range of services with focused, individual attention on the participants, principles that are included in the Colorado Youthful Offender System (YOS). YOS is designed to challenge patterns of thinking and behavior that result in criminality and acts of violence, including gang-initiated criminal behavior. The YOS focus emphasizes treatment, discipline, and a successful transition back into society with a low staff-to-offender ratio.

The Colorado YOS has four distinct phases. The first, an intake, diagnostic, and orientation program, is an attempt to change the anti-authority attitudes common in most YOS youth. Phase II begins the period of institutional confinement, with requirements that consist of a range of "core programs, supplementary activities, and educational and prevocational programs."²⁷⁴ The time an offender spends in phase I depends on the length of the YOS sentence. During phase III, which occurs during the last 3 months of the period of institutional confinement, the Colorado Department of Corrections is authorized to transfer the youthful offender to any residential program serving youth. Finally, phase IV is a period of aftercare and community supervision in which the offender, under intensive monitoring, is reintegrated into society.²⁷⁵

Under the Colorado YOS, criminal court judges impose a regular adult sentence on the youth, but suspend it if the youth successfully completes the YOS sentence. Typically, juveniles and young adults are sentenced to 2 to 6 years in the YOS, with a community placement and aftercare provision for the last 6 to 12 months of the sentence. Youth may have their adult sentences revoked after successful completion of the YOS program, providing they do not commit new crimes and follow the regulations of the YOS program.²⁷⁶

Effectiveness of Expanded Sentencing Authority

Different perspectives can he heard regarding the efficacy of these types of sentencing dispositions. For example, in an analysis of judicial waiver and its alternatives, the ILJ has studied the issue of blended sentences and expanded sentencing authority and postulates that this augmented jurisdiction could facilitate a more efficient administration of justice:

The sometimes contradictory commands of the waiver laws' punishment objectives and the concern for individualized treatment embodied in the amelioration laws can result in opposing decisions being made in the two courts. Justice system inefficiency and ineffectiveness can result, for example, where the juvenile court waives a juvenile to the criminal court and then the case is remanded back to the juvenile court. A similar contradiction arises where the juvenile court determines that a juvenile cannot be treated and waives the youth to the criminal court where the juvenile is sentenced to a youth offender treatment program. One solution is to authorize a single court to determine whether punishment or treatment is preferable in the instant case. This is done by transferring sentencing authority from the opposing juvenile or criminal court to the court with jurisdiction over the juvenile defendant's case.²⁷⁷

However, research recently completed by NCJJ indicates that blended sentencing initiatives may cause more confusion than good. "Blended sentencing creates confusing options for all system actors, including offenders, judges, prosecutors, and corrections administrators. Contact with juvenile and criminal justice personnel across the country revealed that confusion exists about these statutes and the rules and regulations governing them, especially with respect to the juvenile's status during case processing and subsequent placement. This has repercussions on the definition of a juvenile with regard to compliance with the Juvenile Justice and Delinquency Prevention Act mandates."²⁷⁸

Another consideration for policymakers contemplating these sentencing alternatives relates to the constitutional rights of juveniles. More States are expanding the mechanisms by which juveniles are ultimately disposed -- either by the juvenile or adult criminal court -- to adult sanctions and sentences. Alleged juvenile offenders who are prosecuted in the adult criminal justice system, subject to adult sanctions, or serving time in adult facilities must be afforded the same substantive and procedural rights as alleged and convicted criminal offenders. A related issue for States is determining the availability of resources through which States can provide for jury trials, bail, and other criminal justice system rights for juveniles subject to blended sentencing or incarceration in adult correctional facilities.

265. Model Handgun Code, supra note 79 (citing Brian R. Suffredini, Note, Juvenile Gunslingers: A Place for Punitive Philosophy in Rehabilitative Juvenile Justice, 35 B.C. L. Rev. 885 (1994)).2

266. Torbet Et Al., supra note 154, at 18.

267. Minn. Stat. § 260.125 (Supp. 1995).

268. Conn. Gen. Stat. § 46b­120 (Supp. 1996), Ky. Rev. Stat. Ann. § 38­1663 (Michie Supp. 1996).

269. Torbet Et Al., supra note 154, at 21.

270. Miller, Judicial Waiver, supra note 236, at 6.

271. Torbet Et Al., supra note 154, at 22.

272. Id. at 8.

273. Miller, Judicial Waiver, supra note 236, at 4.

274. Colo. Rev. Stat. Ann. § 16­11­311 (Supp. 1996).

275. Id.

276. Juvenile Crime, supra note 127, at 18.

277. Miller, Judicial Waiver, supra note 236, at 5.

278. Torbet Et Al., supra note 154, at 18.