Notre Dame Journal of Law, Ethics & Public Policy 

About: Notre Dame Journal of Law, Ethics & Public Policy is an academic journal. The journal publishes majorly in the area(s): Public policy & Health care. It has an ISSN identifier of 0883-3648. Over the lifetime, 409 publications have been published receiving 1872 citations.

Transfer of Juveniles to Criminal Court: A Case Study and Analysis of Prosecutorial Waiver

Abstract: VioLit summary: OBJECTIVE: The purpose of this article by Bishop and Frazier was to examine the justification, system, and practices of prosecutorial waiver in Florida. Prosecutorial waiver refers to the ability of prosecutors to transfer juveniles to criminal court. METHODOLOGY: The authors used an exploratory design to examine prosecutorial waiver in Florida. They conducted telephone interviews with twenty persons, either chiefs of juvenile divisions, or respondents that were in some important way associated with the business of juvenile transfer. In addition, the authors gathered data on 583 transferred cases between the years 1981 to 1984, from one midsized county and one large urban county. These cases were taken from prosecutors' files and the records of the Florida Department of Health and Rehabilitative Services. FINDINGS/DISCUSSION: In the first section, the authors discussed the specifications of prosecutorial waiver in Florida. The authors discussed three methods by which youth may be transferred to criminal court: (1) Assessment of dangerousness and treatment amenability; (2) Prosecutorial waiver on the basis of the charge (capital or life felonies); and (3) Prosecutorial waiver may be enacted for any youth older than sixteen charged for any felony, and for any youth fourteen years of age or older that has previously been convicted for a violent felony and is currently being charged with a violent felony. The authors are critical of this last point, stating that a youth sixteen or seventeen years of age may be charged as an adult without determining whether he is dangerous or untreatable. The authors provided statistics that show increases in juvenile transfer when the Florida law was changed allowing prosecutors wider discretion regarding transfers. Prosecutors reported being pleased with the change in the Florida law. Most respondents had reported a desire for broader discretionary powers. The interviews, according to the authors, provided an opportunity to examine the relationship between prosecutors' penological beliefs and their opinion about transfer. The authors reported that respondents fell within three categories of punishment philosophy: pure retributive, modified retributive (just deserts with a taste for deterrence), and rehabilitative. Those falling under the category of pure retributive believed in prosecutorial transfer as a means of ensuring the punishment would be harsh enough to fit the crime. Those holding a modified version of just deserts philosophy believed in transfer, but also held that this belief was motivated by a utilitarian end (e.g., to decrease crime). Those believing in punishment as having a rehabilitative end were, not surprisingly, the least supportive of wider prosecutorial discretion. This latter category believed that transfer should be a last resort, for those offenders who have already been through the juvenile system with no success toward rehabilitation. The authors reported that in the smaller of the two counties, about a third of all cases in which transfer was requested were not prosecuted in criminal court. In the larger county, however, 14% of the cases referred for transfer were not prosecuted in criminal court. According to the authors, the difference in these proportions can be attributed to differences in bureaucratic processes between the two counties. Most of those (55%) transferred were accused of property offenses, and 29% were accused of a felony against another person. About 11% were accused of felony drug crimes, and 5% were accused of misdemeanors. The authors stated that the general trend was toward transferring more nonviolent felons and misdemeanants. Regarding the prior offenses of transferred juveniles, the authors found that 58% had previously served probation or received court-ordered sanctions, and in 23% of the cases transferred youth were first-time offenders, having never been exposed to the juvenile justice system. Less than half of the cases had three or more prior charged or cleared offenses. The authors concluded from this data that, overall, transferred youth were not dangerous. Ninety-six percent of all transferred cases ended in conviction. However, a little less than half of those convicted received fairly short jail time. The authors commented that the Florida law that allows for prosecutorial waiver directs prosecutors to recommend transfer "when the public interest requires it." The authors noted that, despite the great deal of discretion afforded prosecutors, a relatively small number of cases have been transferred. However, the authors argued that, based on the data, few transferred youth seem appropriate for transfer. Restraint in the use of prosecutorial waiver was due, in part, to the fact that many prosecutors subscribe to the penological goals of the juvenile justice system, according to the authors. The authors also concluded that the lack of statutory guidelines in prosecutorial waiver allows for inconsistent transferring, as well as the transfer of non-dangerous offenders. AUTHORS' RECOMMENDATIONS: The authors made it quite clear that they believe prosecutorial waiver, due to arbitrary, inconsistent, and often inappropriate transfer decisions, should be eradicated. In its place, courts should rely on legislative and judicial waivers. The authors also suggested that, in order to reduce arbitrariness and capriciousness from the decision, a greater number of crimes should fall under legislative transfer jurisdiction. Also, the authors recommended that the state legislature should develop clear and consistent criteria for evaluating a transfer decision. Finally, the authors hoped to put the decision to transfer ultimately into the hands of a judge using a standardized case analysis form. (CSPV Abstract - Copyright © 1992-2007 by the Center for the Study and Prevention of Violence, Institute of Behavioral Science, Regents of the University of Colorado) KW - Juvenile Violence KW - Juvenile Offender KW - Juvenile In Adult Court KW - Juvenile In Justice System KW - Correctional Decision Making KW - Criminal Justice System KW - Justice System Response KW - Judicial Transfer-Waiver KW - Florida