One of the worst things that can happen in a juvenile case is a waiver to an adult court. In some cases, usually because of the severity of the offense, a prosecutor will ask the juvenile judge hearing the case to “waive” or transfer a particular juvenile matter to an adult criminal court where it will be disposed of using procedures employed in adult criminal cases, including the imposition of an adult sentence. The prosecutor’s office in at least one New Jersey county currently has a policy of automatically seeking a waiver in every juvenile case involving a weapon, regardless of the surrounding facts and circumstances. Waiver is not necessarily automatic; however, defense counsel must work diligently to overcome a prosecutor’s request for a waiver to adult court.
There are some cases where waiver may arguably be appropriate. In most cases, however, waiver accomplishes nothing, and this view seems to be gaining traction. A series of United States Supreme Court decisions issued over the last several years are based clearly on the idea that juveniles cases must be treated differently from adult cases because juveniles are not like adults. The Court has recognized that juveniles have less experience generally, and are less developed both intellectually and emotionally. A recent study from the Campaign for Youth Justice demonstrates that many states may be starting to take this view seriously, and are enacting juvenile justice reforms that address juvenile defendants “in a developmentally appropriate way.” The report can be viewed at www.campaignforyouthjustice.org.
The report observes that approximately 36 states now have laws designed to prevent minors from being incarcerated in adult prisons or jails (where, not surprisingly, they are frequently the first victims of sexual assaults). Further, many states are working on legislation that will reduce the exposure of juveniles to the adult criminal justice system in various ways.
The report notes that about 9 states and the District of Columbia now have laws that have either removed minors from adult jails, or restricted the ability of courts to detain them in such facilities. Additionally, 19 states have raised the age at which a juvenile can be waived to adult court, or have reduced the number of offenses that could result in a waiver. For example, California and Vermont have restored the discretion of juvenile judges to make individualized determinations in particular cases that have effectively ended the ability of prosecutors in those states to unilaterally decide that a juvenile case should be transferred to an adult court. In fact, the report notes that since 2005, states have passed approximately 70 laws geared toward juvenile justice reform.
Against this backdrop, the report suggests strongly that the current trend in juvenile justice appears to be moving toward viewing juvenile defendants as individuals, and making decisions in particular cases that are based not only on the facts of the underlying offense, but also on what is known about the juvenile and their background. The current trend also includes movement away from the adult system, and toward community-based juvenile justice.
One of the worst experiences I have had involved a defendant that I represented in a series of matters in juvenile court. His dispositions began with non-custodial probation, were steadily escalated to more restrictive forms of supervision, and ultimately ended with a custodial term in a youth facility. That was the last time I represented this client. Approximately two or so years later, I was sitting in an adult courtroom in the same county waiting for my case to be called. As I was reviewing my file, I heard that juvenile’s name called. I looked up, and there he was – only this time, he was in an adult court, as an adult criminal defendant, with adult charges, facing an adult sentence. Out of curiosity, I spoke with his then-latest defense attorney. I learned that he was barely an adult when he incurred the new charges, and was now facing his first adult criminal conviction. It was pretty clear that this defendant was just cranked through the juvenile justice system where absolutely nothing was accomplished that would change his behavior, and this was the result.
The current trend in juvenile justice reform is promising, but it has to continue unabated if it is to really have any impact upon the current system. The movement toward a model grounded in community-based justice as opposed to one similar to the adult criminal justice system is promising, but considerably more work needs to be done before it is a reality.
James S. Friedman, Esq., is a criminal defense attorney in New Brunswick, New Jersey. Mr. Friedman represents juvenile defendants in all Superior Court matters in all New Jersey counties.