9.8 Getting Tough: Initiatives for Punishment and Accountability
Alison S. Burke and Michelle Holcomb
The 1980s saw a huge shift in the way state and federal laws were addressing juvenile justice. Gangs, gun violence, and drugs drew attention to the identification, punishment, and prevention of violent and chronic youth offenders. The Office of Juvenile Justice and Delinquency Prevention (OJJDP) focused research on youth violence and state and local programming. Attention focused on the identification and control of serious, violent, and chronic offenders (Krisberg, 1978).
At the state level, lawmakers enacted policies to crack down on youth crime. In the mid-1990s, the idea of the juvenile superpredator– youth so impulsively violent, remorseless, and have no respect for human life- led to widespread reform and more punitive approaches to juvenile crime and delinquency. This included more punitive sentences, lowering the age at which a juvenile could be tried as an adult, and loosening the provisions for trying juveniles in adult court. The motto “adult time for adult crime” drove accountability initiatives and “get-tough” campaigns. Many youths were no longer seen as vulnerable minors in need of protection and treatment. Instead, the narrative changed, constructing them as violent monsters acting “with no conscience and no empathy,” a statement made by former Secretary of State Hillary Clinton.
Waivers and Adult Time
All states have enacted laws that allow juveniles to be tried in adult criminal courts. There are several mechanisms by which a juvenile can be transferred to adult criminal court: prosecutorial, legislative, and judicial waivers. The prosecutorial waiver is also referred to as “Direct File” and “Concurrent Jurisdiction.” With this waiver mechanism, the legislature grants prosecutors the discretion to determine in which court to file charges against the juvenile (Feld, 2001). The prosecutor, or district attorney, can choose to file charges in juvenile court or adult criminal court. This procedure does not require a transfer hearing, so the defense is not accorded the opportunity to present evidence in an attempt to avoid the transfer (Steiner & Bell, 2006)
Legislative waiver, or statutory waiver, identifies certain offenses which have been mandated by state law to be excluded from juvenile court jurisdiction. It is utilized as a method to decrease or eliminate the discretionary powers of judges and prosecutors. For example, a number of state statutes specify that violent felony offenses (such as homicide, rape, and robbery), when committed by older adolescents, are automatically sent to adult criminal court.
In the News: Raising the Age and Raising the Bar
As part of the “Raise the Age” legislation passed in 2017, all minors on Rikers Island awaiting trial or otherwise have to be moved out of the notorious New York City jail in October 2018. Rikers Island is famed for abuse, corruption, and violence and has begun the 10 years shutdown plan to close the scandal-ridden jail complex. The jail houses some 9,000 inmates, more than 2,000 who are juveniles. The plan is to reduce the jail population while moving the inmates to other facilities throughout New York’s boroughs.
Part of the reduction in the number of inmates stems from the recent law, which mandates that 16 and 17-year-olds in New York State will no longer automatically be charged as adults in criminal courts. And the age rises even more, to 18, on October 18, 2019.
Rikers Island has a sordid history of brutality and inhumane treatment of prisoners. Perhaps the most well-known case in recent history is the story of Kalief Browder, a 16-year-old kid from the Bronx who was charged with stealing a backpack. Although he claimed he was innocent, he ended up spending three years at Rikers Island, and more than two years were spent in solitary confinement. The charges were eventually dismissed, and Browder was released, but the time spent in solitary caused significant and detrimental mental health issues. Tragically, he committed suicide in 2015, just two years after his release. His case garnered national attention prompting New York to ban the use of solitary confinement for inmates under the age of 18.
Research shows that solitary confinement is linked to mental health problems like depression, anxiety, psychosis, and even suicidal ideation. For these reasons, all federal prisons ban solitary confinement for juveniles and most states don’t allow the use of solitary in juvenile facilities. However, solitary is still used in adult prisons. Each year around 200,000 youth are tried as adults, and many are sentenced to time in regular, adult prisons. Many of these state jails and prisons still use solitary confinement for the “safety” and “protection” of juveniles housed with adults (Resitvo, 2019).
Raising the age legislation is a step in the right direction and will prevent more juveniles from being sent to adult facilities. New York and North Carolina were the last two states in the nation to charge 16 and 17-year-olds as adults up until last year when both amended their laws. The legislation will have a profound impact on New York’s criminal justice system and is seen as a massive win for reformers who have been pushing for better treatment of children at Rikers Island for years (Restivo, 2019).
Listen to the story and read more at:
https://www.wnycstudios.org/story/raise-age-new-york-minors-rikers
In Louisiana: No Kids in Angola:
Watch this video about Louisiana sending kids to Angola, “The Alacatraz of the South” here.
(Inside Story)
Judicial waiver affords the juvenile court judge the authority to transfer a case to adult criminal court (Hemmens & Bell, 2006). There are three types of judicial waiver: discretionary, presumptive, and mandatory.
The discretionary (regular) transfer allows a judge to transfer a juvenile from juvenile court to adult criminal court (Sanborn, 2004). With this type of transfer, the burden of proof rests with the state, and the prosecutor must confirm that the juvenile is not amenable to treatment. As discussed previously, in Kent v. United States , the Supreme Court outlined threshold criteria that must be met before a court can consider waiving a case. These waiver statutes typically include a minimum age, the specified type of offense, a sufficiently serious prior record, or a combination of the three.
Presumptive waiver shifts the burden of proof from the state to the defendant. It is presumptive because it is presumed that it will occur unless the youth can meet the burden of proof and provide a justifiable reason to remain in juvenile court. If the youth is unable to show just cause or sufficient reason why the case should be tried in juvenile court, the case will be transferred and tried in adult court.
The third type of judicial waiver is a mandatory waiver. Mandatory waiver means that a juvenile judge must automatically transfer to adult court juvenile offenders who meet certain criteria, such as age and current offense. In these cases, the role of the judge is simply to confirm that the waiver criteria are met and then to transfer the case to adult court. Like legislative waivers, mandatory waivers attempt to remove all discretionary powers from the juvenile court judge in transfer proceedings (Burke, 2016).
Youth so impulsively violent, remorseless, and have no respect for human life
The legislature grants a prosecutor the discretion to determine in which court to file charges against the juvenile
Identifies certain offenses which have been mandated by state law to be excluded from juvenile court jurisdiction, also known as statutory waiver
Affords the juvenile court judge the authority to transfer a case to adult criminal court
Allows a judge to transfer a juvenile from juvenile court to adult criminal court
Juvenile has the burden of proof that they should remain in juvenile court
A juvenile judge must automatically transfer to adult court juvenile offenders who meet certain criteria, such as age and current offense
