Transfer

The transfer of juveniles from delinquency court to an adult court is a pressing issues juvenile defenders face in their practice. According to the National Juvenile Defense Standards, Standard 8.4, juvenile defense counsel must, when in the client’s expressed interests, endeavor to prevent adult prosecution of a child client.

Adult court judges are often unfamiliar with the needs of younger defendants, the resources needed to protect juveniles, or the findings of adolescent development research. Transfer decisions may impact the placement of young people in adult jail, and often entail dispositional options that are unsuitable for children or adolescents. As such, juvenile defenders must explain the nature of the proceedings and the consequences of transfer to the client and the client’s parents.

The legal mechanism through which jurisdiction over a child’s case is transferred from the juvenile court to the adult court is called a waiver. Waiver laws come in many different forms, depending on the state. The various forms of waiver laws include:

• Statutory Exclusion (Automatic Waiver): Many jurisdictions exclude certain offenses from juvenile court jurisdiction based on the charges, the age of the youth, and/or the youth’s prior record. This means that the youth is treated as an adult from the inception of the case. The prosecutor has the discretion to charge a youth with an excluded offense. Depending on the jurisdiction, some statutory exclusion laws allow for a limited review of the transfer before the juvenile or adult court judge. For example, in some jurisdictions, the case originates in juvenile court where the judge determines whether or not there is probable cause to believe that the youth committed the offense. If probable cause is met, then the youth is automatically transferred to adult court.

• Discretionary Waiver (Prosecutorial Discretion or Direct File): These transfer statutes grant the prosecutor the discretion to decide whether to file certain cases in juvenile or adult court. The scope and parameters of that discretion vary from state to state. Review of the transfer may be provided, depending on the jurisdiction. States have recently amended these laws to be over-inclusive by lowering the age limit and delegating more discretion to prosecutors in deciding whether a youth shall be transferred to adult criminal court.

• Presumptive Waiver: Some states provide a rebuttable presumption that transfer to adult court is proper in certain cases (e.g., based on type of offense or age of the child).  The prosecution must demonstrate that the case satisfies presumptive waiver eligibility. The child may rebut presumption with mitigating evidence, etc. If the youth is unable to rebut the presumption, the juvenile court must waive jurisdiction.

•  Judicial Discretion: These statutes allow the prosecutor to file a motion to request transfer, but ultimately, it is the juvenile court judge who will decide whether transfer is appropriate. This usually involves a transfer hearing where the judge weighs the evidence and generally considers the “Kent criteria” when making the decision to transfer.

•  Once an Adult, Always an Adult: Many jurisdictions provide that once a youth has been transferred and tried as an adult, the youth will be prosecuted as an adult for any subsequent offense. Most states require that the youth be convicted in adult court before this provision applies.

•  Reverse Waiver: Some jurisdictions have “reverse waiver” statutes that allow the youth to argue in adult court that he or she be returned to juvenile court jurisdiction.

• Blended Sentence or Extended Jurisdiction Juvenile (“EJJ”): Some youths may end up in adult prisons through blended sentencing schemes, which sentence youth to some years in a juvenile facility and some years in an adult facility.

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