Study
Abstract
Juvenile transfer laws is one of the most controversial issue on the today’s criminal justice agenda of the United States of America. Thus, the policymakers vehemently argue that the possibility of being tried ‘as an adult’ is an effective general, specific and potential deterrent of juvenile crime. Enacted in the majority of the states, the juvenile transfer laws are thought to be an effective restraint against juvenile recidivism, an effective tool for rehabilitation of the young offenders and a solution, which protects the community against the most dangerous juvenile offenders.
Yet, the several studies demonstrated that these assumptions are substantially exaggerated. In particular, it has been found out that the transfer laws exercise moderate or no effective in terms of specific and general deterrence, while potential deterrence is validated only when there is strong awareness of the would-be criminals about the chances of being arrested and tried in the adult system of criminal justice.
This paper analyzes the effectiveness of juvenile transfer laws in the United States by analyzing several recent studies. Based on their findings, the main argument of this research is that the existing transfer laws are inadequate for reducing recidivism and rehabilitating the juvenile offenders.
Paper Outline
This research has the following structural elements:
Introduction – In this section, the concept of juvenile transfer laws is explained. Additionally, this part of the paper provides a brief overview of the juvenile transfer laws in the United States of America, and analyzes why these laws were adopted.
The types of transfer laws and policies in the United States – this part of the paper reveals what type of transfer laws currently exists in the country. Specifically, it explains the differences between prosecutorial, judicial and legislative transfer laws.
Transfer laws and deterrence – this section explains major scholarly points in relation to deterrent characteristics of the transfer laws.
General deterrence and transfer laws – this part analyzes the existing research studies in relation to general deterrence and transfer laws, concluding that there
Transfer law and potential deterrence - this section of the research evaluates the impact of juvenile transfer laws on the deterrence of those, who do not have prior conviction, but have high chances of developing predispositions to crime. This aspect is especially relevant for protection of the community.
Transfer laws and specific deterrence – in these section different aspects of the correlation between juvenile transfer laws of the United States and recidivism of the offenders are discussed. In particular, this part of the part concludes that existence of the juvenile transfer laws is not conducive to rehabilitation of the former offenders. Furthermore, in many cases recidivism rates among the juvenile offenders are higher after incarceration in the adult penitentiary system.
In the conclusion section, the main findings of this research are summarized, and it is inferred that the effectiveness of the transfer laws is grossly exaggerated.
Introduction
Starting from 1980s, many states of the United States of America enacted far-reaching legislative reforms, aimed at making the juvenile justice system tougher. One of the most notable elements of these modifications was nationwide revisions of the transfer (sometimes referred to as a ‘waiver’) laws (Griss et al., 2013). In particular, the legislators expanded in the type of offenses, as well as the eligibility criteria of the offenders, which can be tried in the adult system of criminal justice (ibid.). In practice, the transfer either dealt with the reduction of a minimum age for transfer, diminishment of a judicial discretion or expansion of the prosecutorial one in the context of juvenile transfers decision-making (Mulvey & Shubert, 2012). For example, in 2004 only 31 states had automatic transfer loss, meaning that for certain categories of crime, the juvenile offenders were automatically subjected under the jurisdiction of adult criminal courts. By 2011, these numbers increased to 37 states (Redlich, Silverman & Steiner, 2013). In addition, 14 states lowered the minimum age for adult criminal trials eligibility from to 15 years, which is one of the lowest standards internationally (Johnson & Kurlychek, 2012). Only the state of North Carolina increased the age of juvenile court jurisdiction from 15 to 18 years in 2008.
Enacting those modifications, the policymakers pursued several interconnected goals. Firstly, one of their priorities was to decrease juvenile crime recidivism, for which the United States of America is notorious (Siegel, 2012). Nowadays, there is no nationwide reliable statistics depicting the state of juvenile recidivism in the United States. However, the compilation of the completed by the state law enforcement systems indicated that it fluctuates between 51-55% (Sickmund & Puzzanchera, 2014). In contrast, the recidivism rate of juvenile delinquents in the Federal Republic of Germany is 14% only. In Japan, the national statistics show that only 7% of the formerly incarcerated underage criminals engaged in violations of the law again (Mulvey & Schubert, 2012). Secondly, the purpose of the policymakers in making the transfer laws stricter was to facilitate social rehabilitation of the juvenile offenders, i.e. the legislators assumed serving sentences in the adult penitentiary system would be conducive to their re-integration to the community in the forms of revitalized academic and professional interests (Kirk & Sampson, 2012). Thirdly, they assumed that making the sentences tougher for the juvenile criminals would be positive for the protection of the community.
Yet, with rare exception, the practice yielded the opposite results. In particular, Johnson & Kurlychek (2012) argued that several studies revealed that neither their recidivism rates among the juvenile offenders, nor their rehabilitation were more progressive. Thus, the purpose of this paper is to investigate different transfer laws and policies of the United States of America, to analyze their efficiency and effectiveness for a recidivism rates reduction, rehabilitation of the underage offenders and contribution to the protection of the American society. In particular, this research argues that transfer laws and policies are mainly ineffective solutions for accomplishing these tasks, and their serious modifications and additional research are necessary.
The types of transfer laws and policies in the United States
The research says that while the age at which underage offenders can be 'processed' in the adult criminal justice system is different across different states of the country, the majority of local legislators legalized the transfer of those aged 14 and older for the commitment of serious felonies (Sickmund & Puzzanchera, 2013) . Nowadays, the law recognizes four main categories of crimes, which make a juvenile offender eligible for the transfer to the adult criminal court. Thus, it can be
Any crime, which is characterized by unprecedented ferocity, cruelty, ingenuity or which resulted in grave consequences to the community
Murders and other capital crimes
Serious felonies
Certain offenses, which had been perpetrated by the juvenile offenders, who had prior criminal record.
The main reasoning behind this classification is that even a juvenile have sufficient mental and cognitive capacity to comprehend that their crimes are fraught with imminent danger and irreparable harm, which can be inflicted to the community.
There are three main types of transfer laws and policies currently practiced in the United States of America. The first type is the so-called legislative (also known as 'automatic') transfer. That means that a juvenile convict is tried in the adult criminal system because of the specific statutory provisions, which recognize his crime as the one, which is triable in the adult system of criminal justice (Burfeind & Bartusch, 2011). Secondly, there is a group of transfers, which is subject to judicial discretion, i.e. it is the judge who decides whether an underage convict should be transferred to the adult system, or the process should remain within the boundaries of juvenile criminal justice framework. Lastly, there is a prosecutorial direct file, which means that it is the task of the prosecution to decide on the system. Each form of the transfer laws defines the transfer eligibility criteria, the type of offenses, covered by this law and minimum mandatory age of the delinquents. Currently, two thirds of the states in the country employ different combinations combination of three systems concurrently.
In 29 states, automatic transfer laws are currently in force. Sometimes, domestic statutes have a provision of the so-called 'reverse waiver jurisdiction', meaning that, in some cases, the court may decide to send the defendant back to the juvenile court, or to try him in the adult court, but adjudicate a juvenile sentence (Kirk & Sampson, 2012).
Transfer laws and deterrence
The idea of transferring juvenile delinquents to the adult penitentiary system is mainly founded on the assumption that the adult-styled sentences are effective deterrent against underage crime (Redding & Hensl, 2011). With regard to the general deterrence (the assumption that the existing juvenile transferable would deter any potential juvenile criminal), the majority of the completed studies produced somewhat mixed results (Goldstein et al, 2013). In particular, the proponents of transfer law proliferation conducted several cross-sectional researches, and found out that the possibility of getting harsher sentence is the most effective deterrent for the young would-be criminals. However, the opponents of this idea provided conflicting findings, which demonstrated the opposite trend. Yet, the existing empirical evidence suggested that the impacts of transfer laws to general deterrence are seriously exaggerated (Griffin et al., 2011). According to Redlich, Silverman & Steiner (2013) it produces minimal or no effect at all.
As far as specific deterrence is concerned (whether the system of transfer laws and policies reduces the likelihood of reoffending by those juvenile delinquents, which had prior criminal record) the practice revealed that the rates of recidivism among the juveniles incarcerated in the adult penitentiary system is higher than among those, who were sentenced for similar crimes, but in the juvenile system of criminal justice (Mulvey & Schubert, 2012).
General deterrence and transfer laws
Several studies have been completed to evaluate the impact of transfer law enforcement on the reduction of criminal propensities among the would-be offenders (Goldstein et al., 2013). Thus, the work of Siegel (2012) figured out that in the state of Idaho during the period 2005-2009 the number of arrested juveniles aged 14-18 increased on 13%. The scholar suggests that these inquiries should be attributed to the adoption of a series of the state transfer laws in 2004. In contrast, during the same period in the states of South Carolina and Ohio the percentage of juvenile arrestees decreased on 5% (Griffin et al., 2011). No transfer laws adopted or even discussed in their respective legislatures. Similarly, the co-joint study of Kirk and Sampson (2012) indicated that the enactment of the automatic system of transferring juvenile offenders for the violent crimes and serious property related crimes to the adult penitentiary system brought no positive effect as well. The studies also confirmed the assumption that the juvenile offenders were well informed about the existence of this law, because it was extensively advertised in the various media sources (Kirk & Sampson, 2012)
At the same time, several contradictory studies demonstrated that under certain conditions application of the adult sentences might have some sort of deterrence on the juvenile offenders. Thus, Goldstein and his associates (2013) found that there is a relative decrease in the juvenile crime when the transfer statutes were enacted. However, this rationale is applicable only to the states, where the differences between juvenile and adult criminal justice systems are substantial, and the sentences for similar crimes committed by the adults and the juveniles are grossly disproportionate (Goldstein et al., 2013). In addition, that study was limited to analyzing the juvenile convicts, who were approaching the age of full criminal responsibility. Thus, these findings demonstrate that the possibility of transfer and tried in the adult system of criminal justice exercises moderate preventive effect on the offenders, who are on the verge of becoming eligible for being tried in the general criminal courts per se.
Yet, the study of Burfeind and Bartusch (2011) reached comparatively different conclusion. Thus, having examined different felony cases, and focusing on the criminal record and age of the offenders, who committed crimes in the state of Florida between 2009 and 2011, the researchers concluded that the criminal propensities of the juvenile criminals do not decrease when they reach 18 years. This research seriously questioned the work of Goldstein and his team, highlighting that additional research is necessary to investigate the variables, which influence criminal inclinations of the potential offenders.
In general, it is reasonable to conclude that the existing research confirms that there are no sufficient grounds to believe that that existence of transfer laws and policies produce sufficient deterrent effect on the juvenile offenders. Despite the fact that some studies confirmed positive outcomes of such policies, nationwide application of the police making on the basis of the studies is restricted by the facts that they examined only those, who are almost adults, as well as they describe the state criminal justice systems where the punishments for juveniles and adults were substantially disparate
Transfer laws and potential deterrence
Some scholars actively advocate the idea that transfer laws might have positive potential deterrence impacts, as long as they juvenile population is aware about the existence of these laws (Redding & Hensl, 2011). Thus, Mulvey and Schubert (2012) concluded that 'when the offenders are made aware of about the severity of the potential punishments, the majority of them have high chances to desist from active engagement in the criminal activities’. The research, which examines the validity of this assumption for the adults, demonstrated that there is little or no positive impact in this regard at all (Mulvey & Schubert, 2012). Furthermore, the commentators also speculated that in the majority of cases, the criminals are more informed about the chances of being arrested, then about the type of potential sentence (Grisso et al., 2013). In other words, often the public is not sufficiently informed about the type of punishment, as well as it tends to underestimate its severity (ibid.). Moreover, the practice also demonstrates that the overwhelming majority of juvenile and adult offenders downplay potential castigation as an unlikely future event, while the short-term benefits of committing a crime exert a considerably more incentivizing effect (Johnson & Kurlycheck, 2012). Therefore, a reasonable conclusion in this regard is that potential deterrence of the transfer laws, as well as other criminal justice policies, is justified only when the would-be convicts are sufficiently informed about the gravity of the punishments.
Despite the fact that the figures for juvenile offenders are less available, they suggest that the principle of potential deterrence is relatively justified. For example, the study of Griffin and his associates (2011) analyzed the number of self-reported delinquency cases for the adult and juvenile offenders between 1998 and 2003 across the country. Among other issues, the researchers identified that there is a 6.4-percent decrease in the likelihood of committing a violent crime for each additional arrest. In addition, there is a 3.4-percent reduction in the probability that a juvenile delinquent will engage in a drug-related crime. Similarly, Redding and Hensl (2011) identified that prior criminal record reduces recidivism of the juvenile male offenders, especially among those, for whom it was the first offense. Thus, the scholars found a negative relationship between the severity of the sentence and the likelihood of relevant, as well as a positive correlation between the actual number of committed crimes and self-reported post-incarceration intentions of the former convicts.
Overall, the existence of transfer laws may be considered to validated only on condition that (a) a potential criminal is strongly convinced that the likelihood of his arrest is high and (2) a potential criminal strongly believes that his sentence will be severe enough to outweigh the short-term rewards of a crime. Thus, the deterrence effect of a transfer law is justified only when the potential targeted juvenile offenders are sufficiently informed about the existence of such law and about the effectiveness of its enforcement. Sickmund and Puzzanchera (2014) concluded that only 9% of the juvenile criminals were informed that their recent chance that they would be tried as adults and almost none of them realistically evaluated this scenario. Only 4% realize that serious adult punishments could be applied for their violations of the law. Additionally, only 7% declared that they were analyzing the possibilities of being arrested by the law enforcement authorities. The scholars speculated that it is the cognitive and mental immaturity of the juvenile offenders, conditioned their tendency to underestimate potential risks of apprehension and incarceration (Siegel, 2012; Griffin et al, 2011).
Transfer laws and specific deterrence
Up-to-date, several studies have been conducted to analyze specific deterrence impacts of the juvenile transfer laws in the United States of America. In general, the studies found out that the juvenile delinquents incarcerated in the adult penitentiary systems have greater chances of committing another crime after their release, than those inmates, who served their sentences in the system of juvenile justice (Mulvey & Schubert, 2012). However, these studies did not provide explicit answers in relation to property and drug crime.
For example, the research of Johnson and Kurlychek (2012) found that the percentage of the juvenile offenders, who received sentences in the criminal courts was substantially higher, than those, who committed the same times, but were subject to juvenile criminal justice systems (93% and 69% respectively). Among those, who have been apprehended by the law enforcement again, the chances for re-arrest increase progressively.
In addition, the study of Redlich, Silverman and Steiner (2013) concluded that there is 95% increase in the likelihood of recidivism for violent offenses 46% increase in the probability of re-arrests for property-related crimes among the New York juvenile offenders, who were tried as adults. Furthermore, there is a 29% chance of being re-incarcerated again. However, the results are fundamentally different for drug-related crimes. In particular, the scholars found out that the chances of getting involved in dealing with the prohibited substances decrease on 26%, if a juvenile was tried in the adult system of criminal justice.
Conclusions
Secondly, the studies also confirmed the assumption that enactment of these laws may be effective for potential deterrence. However, this rationale is justified only when three indispensable conditions are met. In particular, in such cases a would-be juvenile delinquent should be on the verge of reaching the age of full criminal responsibility, he/she should be informed about the high chances of apprehension, as well as about the fact that he/she is subject to the jurisdiction of the adult system of criminal justice. Additionally, the difference between juvenile and adult punishment for the same offense should be substantially disparate.
Thirdly, in contrast to the intent of the policymakers, the practice revealed that incarceration in the adult penitentiary institutions lead to increased recidivism among the juvenile offenders. Therefore, not only the existing transfer are ineffective solutions for the reduction of juvenile crime, but also they aggravate the problem. In the meantime, the studies revealed the necessity of exploring the problem further. In particular, identifying the factors, which intensify the recidivism propensities of the juveniles, who received ‘adult’ sentences, appears to be an emergent necessity of the criminological agenda.
References
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