Reverse Waiver

The laws of 23 States provide some mechanism whereby a juvenile who is being prosecuted as an adult in criminal court may petition to have the case transferred to juvenile court for adjudication or disposition. By enacting a reverse waiver provision, a State may simultaneously define a broad category of cases that it considers merit criminal court handling and ensure that its courts have an opportunity to consider whether such handling is actually appropriate in individual cases.

A statutory provision is placed in the reverse waiver category if it authorizes the Stateís adult criminal courts to transfer a juvenileís case from criminal to juvenile court, however it arrived in the criminal court in the first place -- via direct file, exclusion, or in some instances, waiver. The reverse waiver designation applies to provisions that authorize the criminal court to transfer a case for disposition to the juvenile court, but does not apply to "blended sentencing" provisions under which the criminal court retains the case while imposing a combination of dispositions, some of which are ordinarily available only to juvenile courts. Likewise, although many States allow a juvenile who has been waived by a juvenile court to appeal the decision immediately, provisions authorizing an appeals court (as opposed to a trial-level criminal court) to order a case returned to juvenile court are not counted as reverse waiver provisions. Conversely, provisions that authorize a trial-level criminal court to make the decision either to accept jurisdiction over a case for trial, or to send it to juvenile court for adjudication, are considered reverse waiver provisions, even where (as in Virginia) they are designated "appeal" provisions.

Generally, when the reverse waiver proceeding represents the first time a court has had an opportunity to consider the appropriateness of adult prosecution in a given case -- when the alleged offense is one that is excluded from juvenile jurisdiction by statute, for example, or when the prosecutor has exercised "direct file" discretion to proceed initially in criminal court -- the courtís decision is governed by the same kinds of broad "best interests" standards and considerations as those taken into ccount by a juvenile court in deciding whether to waive jurisdiction (see Transfer Criteria). In Nebraska, for example, which gives county attorneys considerable direct file discretion but requires them to consider a number of factors (including "the best interests of the juvenile and the security of the public"), the district or county court must consider the very same factors in deciding whether to retain jurisdiction over such a case in the face of the juvenileís objections.

However, six States (Connecticut, Kentucky, Mississippi, Nevada, Tennessee, and Virginia) authorize reverse waiver in some cases even when a juvenile court judge has already looked into the issues and determined that waiver to criminal court is appropriate. Under these circumstances, a reverse waiver is usually available only if the juvenile courtís decision was substantially groundless (Mississippi), or if other "exceptional circumstances" can be shown (Nevada). Tennessee and Virginia have particularly anomalous reverse waiver provisions. In Virginia, as noted above, the procedure is cast in terms of an "appeal" to the adult trial court from the juvenile courtís transfer decision, with the issue being whether the juvenile courtís decision was in substantial compliance with the law; however, in substance the decision is the same as in other reverse waiver situations -- whether or not to accept jurisdiction and retain the case for an adult criminal trial. In Tennessee, a juvenile who has been waived to criminal court is entitled to an immediate de novo rehearing on the issue at the adult criminal court level -- but only if the waiver decision was made by a nonlawyer; otherwise, the juvenile must appeal the juvenile courtís waiver decision following a final conviction.

Twenty of the 35 States with direct file or statutory exclusion also have reverse waiver provisions.

bullet States with reverse waivers: Arizona, Arkansas, Colorado, Delaware, Georgia, Iowa, Maryland, Mississippi, Nebraska, Nevada, New York, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Vermont, Virginia, Wisconsin, and Wyoming.
bullet States without reverse waivers: Alabama, Alaska, District of Columbia, Florida, Idaho, Illinois, Indiana, Louisiana, Massachusetts, Michigan, Minnesota, Montana, New Mexico, Utah, and Washington.

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Trying Juveniles as Adults in Criminal Court: An Analysis of State Transfer Provisions December 1998