All States and the District of Columbia (hereafter included with States in this Report) allow adult criminal prosecution of juveniles under some circumstances. The following discussion of State law in this area -- which is based on State statutes as amended through the 1997 legislative sessions -- gives an account of the principal transfer mechanisms by which juveniles are placed in the criminal justice system at the State level for serious and violent crimes.
State transfer mechanisms differ from one another primarily in where they locate the responsibility for deciding whether or not a given juvenile should be prosecuted in a court exercising civil (delinquency) or criminal jurisdiction.
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Waiver provisions leave transfer decisionmaking to the State�s juvenile courts: juveniles may not be prosecuted as if they were adult criminals pursuant to a waiver provision until a juvenile court judge has ordered it.1 Waiver provisions differ from one another in the degree of decisionmaking flexibility they allow the courts. Some make the waiver decision entirely discretionary. Others set up a presumption in favor of waiver. And still others specify circumstances under which waiver is mandatory. But under all waiver provisions, a case against a juvenile must at least originate in juvenile court and cannot be channeled elsewhere without a juvenile court judge�s formal approval. |
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Direct File provisions leave it up to the prosecutor to determine whether to initiate a case against a minor in juvenile court or in criminal (adult) court. |
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Statutory Exclusion provisions grant criminal courts original jurisdiction over a whole class of cases involving juveniles. Under statutory exclusion, a State legislature is essentially predetermining the question of criminal prosecution for itself and taking the decision out of both the prosecutor�s and the court�s hands. |
This Report also describes statutory mechanisms by which individual cases may be moved from criminal to juvenile court (see Reverse Waiver); prvisions that permanently terminate juvenile court jurisdiction over individual juveniles who have been tried or convicted as adults (see Once an Adult/Always an Adult); standards applied to waiver decisions (see Transfer Criteria); and a number of related subsidiary issues, including the extent to which transfers are allowed or required for offenses that are not violent, probable cause requirements, extraordinary evidentiary burdens, the effect of prior delinquency records in transfer proceedings, limits on prosecutorial discretion, and minimum age provisions.
| Most States Have a Combination of Transfer Provisions |
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Direct file only: Nebraska. Exclusion only: New Mexico and New York. Waiver2 only: California, Connecticut, Hawaii, Kansas, Kentucky, Maine, Missouri, New Hampshire, New Jersey, North Carolina, North Dakota, Ohio, Rhode Island, Tennessee, Texas, and West Virginia. Direct file and exclusion: Massachusetts. Waiver2 and direct file: Arkansas, Colorado, District of Columbia, Michigan, Virginia, and Wyoming. Waiver2 and exclusion: Alabama, Alaska, Delaware, Idaho, Illinois, Indiana, Iowa, Maryland, Minnesota, Mississippi, Nevada, Oregon, Pennsylvania, South Carolina, South Dakota, Utah, Washington, and Wisconsin. All three mechanisms: Arizona, Florida, Georgia, Louisiana, Montana, Oklahoma, and Vermont. |
Table: Summary of Transfer Provisions, 1997
Waiver refers to discretionary, mandatory, and/or presumptive judicial waivers. See appendix for more detail.
State laws do not change the legal status of a juvenile, who is criminally prosecuted, to an adult. Rather, the transfer mechanisms provide for the prosecution of juveniles as if they were adults, subjecting them to a possible criminal conviction and sentence in a court exercising criminal jurisdiction, in the same manner as an adult offender. However, it is common parlance to refer to a juvenile who is criminally prosecuted as one who is being prosecuted "as an adult" or in "adult court."
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| Trying Juveniles as Adults in Criminal Court: An Analysis of State Transfer Provisions |
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