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Fact Sheet: Transfer
of Youth to the Adult Criminal Justice System
What is “transfer? ”
Over the last ten years, nearly
every state has changed its laws to make it easier to prosecute youth as
adults. Traditionally, since a separate court for young people was
created in Chicago in 1899, young people who broke the law were brought
before the juvenile court. In rare cases, judges decided which youth
were so violent or such chronic offenders that they were "not
amenable to treatment" in the juvenile court. In such cases the
jurisdiction of the juvenile court was "waived" and the youth
were sent or “transferred” to the adult criminal court. In addition
to this “judicial waiver” mechanism, some states had legislation
that automatically excluded youth charged with the most serious
offenses, notably murder, from juvenile court jurisdiction. Recently,
however, states throughout the country have passed a variety of “transfer”
measures to send more youth to the adult criminal court.
The principal ways in which youth are
prosecuted in the adult criminal court:
- Judicial Waiver: State law that
allows the juvenile court judge the discretion to have the youth’s
case tried in the adult criminal court.
- Direct File or “Prosecutorial
Discretion”: State law that allows the prosecutor the discretion
to have the youth’s case tried in the adult criminal court.
- Statutory Exclusion: State law that
automatically requires a youth’s case – usually based on the age
of the youth or the alleged crime or both – to be tried in the
adult criminal court.
How does “transfer” impact
youth?
Significantly more youth are tried as
adults in the adult criminal court today as a result of either Direct
File/Prosecutorial Discretion or Statutory Exclusion. Youth tried in the
adult criminal court face the same penalties as adults, including the
death penalty or life without parole; will receive little or no
education, mental health treatment, or rehabilitative programming; will
obtain an adult criminal record which may significantly limit their
future education and employment opportunities; and are at greater risk
of rape, assault and death in adult jails and prisons with adult
inmates. The negative impact of these expanded state transfer law
changes has most seriously affected African American, Latino and Native
American youth.
Recent Studies
In the Building Blocks for Youth
report, Youth Crime/Adult Time: Is Justice Served? key findings reveal
disturbing aspects in the transfer of youth, especially youth of color,
to the adult criminal court. The findings show over-representation and
disparate treatment of youth of color, and raise serious questions about
the fairness and appropriateness of prosecuting youth in the adult
criminal system. For example, the report’s major findings show that:
- Most determinations to prosecute
juveniles as adults were not made by judges (15%), but instead by
prosecutors or legislatures (85%).
- Overall, 82% of youth charged in
adult courts were youth of color.
- Youth of color were
disproportionately charged in adult court.
- Nearly two-thirds of all youth who
were detained pretrial were held in adult jails where previous
research shows that youth are at serious risk of rape, assault,
death, and suicide.
- African-American (43%) and Latino
(37%) youth were more likely than White youth (26%) to receive a
sentence of incarceration (as opposed to a split sentence or
probation).
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