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Prosecuting Juveniles in Adult Court
An Assessment of Trends and Consequences
Malcolm C. Young and Jenni Gainsborough
January 2000

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Prosecuting Juveniles in Adult Court
An Assessment of Trends and Consequences
Overview
Fear of out-of-control juvenile crime and a coming generation of “super-predators,”
compellingly if erroneously described publicly and to Congress in 1996, has undermined the
traditional practice of treating young offenders as different from adult criminals – less culpable
because of their age and more amenable to rehabilitation. In recent years, the focus has turned to
punishment and in particular to the transfer of increasing numbers of youthful offenders from
juvenile to criminal courts. These “solutions” have been demonstrated to be doing more harm
than good. This policy paper provides information on changes in the juvenile justice system and
analyzes why the increased prosecution of juveniles in adult court is another failed “get tough”
policy which is unjust and harmful to children and does nothing to increase public safety.

The Juvenile Court System is Historically Distinct from Adult Courts
The first court designed specifically to deal with children was established in Chicago one
hundred years ago and led to the development of a separate juvenile justice system nationwide.
Juvenile courts are responsible for dealing with children who are accused of committing two
types of offenses: status offenses – violations of laws with which only children can be charged
(e.g., running away from home); and delinquency offenses – acts committed by a child which, if
committed by an adult, could result in criminal prosecution.
The premise on which the separate juvenile system rests is that children are developmentally
different from adults and thus are more amenable to treatment and rehabilitation. The juvenile
justice process centers on the individual child and takes into account the child’s problems and
needs, focusing less on punishment than on helping the child to change and so minimize the
likelihood of future criminal behavior.
During the past ten years, fear of juvenile crime and criminals has undermined the basic concepts
on which the juvenile court was founded. State legislatures and the federal government have
turned increasingly to the more punitive adult model, requiring that even pre-teen children in
some instances be treated as if they were equal in culpability and understanding to adults who
commit similar crimes.

Recent trends in juvenile crime
Trends in juvenile crime provide no evidence that young people have become more crime prone
or dangerous than in past years. The juvenile proportion of all arrests for serious violent crime in
1998 was about average for the preceding twenty-five years, while the percentage of propertycrime arrests involving juveniles has actually declined throughout most of this period. The one
category of crime that diverged significantly from the overall trends during this period is murder.

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Murder by juveniles remained at a relatively constant level for the decade before 1985, but then
underwent a large and disturbing increase. In 1993 the rate peaked, followed by a 48% drop in
juvenile arrests for murder by 1998. As seen in the figure below, this overall rate hides two very
different trends.
•

Until 1985, the rates of gun and non-gun homicides followed a similar pattern.

•

Between 1985 and 1994, non-gun homicides continued at a similar rate while homicides with
guns more than tripled.

M U R D E R S B Y J U V E N IL E S
5000
4500
4000
3500
3000
2500

M u rd e rs w ith
guns

2000
1500
1000
500

N o n -g u n m u rd e rs

0
1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997

As criminologist Alfred Blumstein and others have argued, the large sudden increase in gun
killings was tied to the development of crack markets in the inner city where fierce turf wars
were waged and juveniles were actively recruited by the organizers of the markets. As more
guns came onto the streets, more juveniles began to carry them for self-defense and the number
of deaths spiraled. The sharp decline in recent years resulted from fewer turf battles as drug
markets “stabilized” and a concerted effort by police in some cities to keep guns out of the hands
of juveniles. 1

1

Alfred Blumstein and Richard Rosenfeld, Assessing Recent Ups and Downs in U.S. Homicide Rates, The National
Consortium on Violence Research, 1998; Andrew Lang Golub and Bruce D. Johnson, Crack’s Decline: Some
Surprises Across U.S. Cities, National Institute of Justice, 1997.

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Legislative Responses to Juvenile Crime
Legislative actions in recent years have emphasized measures requiring harsher punishment of
juveniles rather than ones to restrict the availability of guns. Following the Colorado school
shootings in April 1999, the Senate added some gun control measures to the juvenile justice bill
then under consideration in Congress. However, no such measures were included in the House
version of the bill and the process of reconciling the two versions stalled at the end of the first
session of the 106th Congress. In the discussion and heavy lobbying over the gun control
measures, less attention was paid to the other proposals contained in the House bill which would:
•

allow youth as young as 13 to be tried as adults in the federal system

•

expand the range of federal crimes for which a juvenile can be prosecuted as an adult

•

provide for additional mandatory sentences for juveniles in federal court

•

reduce the restrictions on the housing of juveniles in adult prisons and jails.

Policy Changes Have Expanded The Range of Juveniles Who Are Transferred to Adult
Court
Both state and federal legislative responses to juvenile crime have focused on sending more and
younger children to adult criminal court. Since 1992, almost every state has made it easier to try
juveniles as adults. Congress provided additional encouragement to this trend in 1998 by
making some federal grants contingent on states having policies allowing for the prosecution of
those over the age of 14 as adults.
State juvenile codes have long permitted the most serious, chronic or older youthful offenders to
be transferred to the adult criminal court by a process of judicial “waiver” following a hearing in
front of a judge in juvenile court. However, in recent years there have been significant changes
in the processes by which juvenile offenders end up in adult court.
•

Judicial Waiver has been broadened to allow juvenile court judges to transfer younger
juveniles and those charged with less serious offenses and to subject more cases to a
presumption in favor of waiver or to mandatory waiver .

•

Prosecutorial Discretion has been expanded to give prosecutors more authority to file
certain juvenile cases in either juvenile or criminal court as they choose.

•

Statutory Exclusion – increasingly states have passed laws to exclude certain categories of
juvenile offenders from juvenile court jurisdiction based either on age or offense.

•

“Once an adult, always an adult” – most states have provisions in effect requiring that once
a juvenile is prosecuted in criminal court, all subsequent cases involving that juvenile will be
under criminal court jurisdiction.

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Policy Changes Have Resulted in Many More Children Being Tried as Adults
There are no all-encompassing national data collected, but:
•

A report issued by Amnesty International in 1998, based on data from the Department of
Justice and from individual states, estimates that as many as 200,000 youth under the age of
eighteen are prosecuted in criminal court annually, an estimated 180,000 of those in 13 states
which have set the upper age of juvenile court jurisdiction at 15 or 16 rather than 18. 2

•

In 1996, 10,000 cases were waived to criminal court by juvenile court judges. The number
of waivers has declined slightly since its high point in 1994 as increased numbers of
juveniles are sent directly to adult court.3

•

Florida, one of the first states to give prosecutors the right to direct file juvenile cases,
continues to be the most aggressive in prosecuting juveniles in criminal court with 6,525
cases (either direct filed or waived) cases in 1998..4

While many of the laws facilitating prosecution in adult court may have been a response to
increased homicide and violent crime rates, their impact has been much wider.
•

In 1996, more than half the cases waived to criminal court were non-violent drug or property
offenses:
•
•
•
•

43% of cases waived were person offenses
37% property offenses
14% drugs
6% public order.5

Racial Disparities in Juvenile Transfers
A disproportionate number of minority children are prosecuted as adults. Latest statistics from
the Department of Justice6 show that:
•
•

67% of juvenile defendants in adult court are black.
77% of juveniles sent to adult prison are minorities (60% black, 15% Hispanic, 1% American
Indian, 1% Asian).

2

Betraying the Young, Amnesty International USA, November 1998.
Juvenile Offenders and Victims: 1999 National Report, Howard Snyder and Melissa Sickmund, National Center for
Juvenile Justice, OJJDP, September 1999.
4
Reported by Florida Department of Juvenile Justice, Bureau of Data and Research.
5
Juvenile Court Statistics 1996, Anne Stahl, Melissa Sickmund, et al., National Center for Juvenile Justice, OJJDP,
July 1999.
6
Juvenile Felony Defendants in Criminal Courts, Bureau of Justice Statistics, September 1998.
3

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Despite using drugs at a lower rate than white youth (15.7% of blacks, 16.5% of Hispanics and
19.6% of whites aged 12-17 used drugs in the last year):7
•
•

75% of juvenile defendants charged with drug offenses in adult court are black.
95% of juveniles sentenced to adult prison for drug offenses are minorities.

Juveniles in Adult Prisons Face an Array of Problems
Juveniles who receive custodial sentences in the criminal court usually serve their sentences in
adult prisons and jails.
•

In June 1998, more than 6,500 juveniles were held in adult jails either tried or awaiting trial
as adults.8

•

The 36 states supplying data to the National Corrections Reporting Program report that
juveniles accounted for 5,600 (2%) of new court commitments to state adult prisons in 1996.9

•

Of 15,620 youth under the age of 19 serving sentences in adult prisons at the end of 1997,
1,484 were under age 16.10

Children in adult correctional facilities suffer higher rates of physical and sexual abuse and
suicide. Compared to those held in juvenile detention centers, youth held in adult jails are:
•

7.7 times more likely to commit suicide

•

5 times more likely to be sexually assaulted

•

Twice as likely to be beaten by staff

•

50% more likely to be attacked with a weapon11

Children in adult facilities, particularly in jails, frequently do not receive the education or other
services appropriate to their needs. In many states juveniles are treated the same as adults and
are provided the same health, educational and recreational services. Few adult correctional
7

National Household Survey on Drug Abuse: Population Estimates 1997, DHSS Substance Abuse and Mental
Health Services Administration, July 1998.
8 Prison and Jail Inmates at Midyear 1998, Bureau of Justice Statistics, March 1999.
9 Juvenile Offenders and Victims: 1999 National Report, Howard Snyder and Melissa Sickmund, National Center
for Juvenile Justice, OJJDP, September 1999.
10 1998 Directory of Juvenile and Adult Correctional Departments, Institutions, Agencies and Paroling
Authorities, American Correctional Association, 1998
11
Youth in Prisons and Training Schools: Perceptions and Consequences of the Treatment-Custody Dichotomy, J.
Fagan, M. Frost and T.S. Vivona, Juvenile and Family Court, No. 2, 1989.

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agencies provide special programming developed for this age group and most states do not
provide special staff training on handling juvenile offenders.12 The situation for girls is
particularly troublesome as there are so few of them nationally (262 in 1998) that there will often
be only one female under 18 in a particular prison and therefore little likelihood of special
services being provided.

Being Tried as an Adult May Have Long-term Consequences
In addition to receiving an adult sentence and possibly serving time in an adult prison, juveniles
convicted in criminal court may suffer other long-term legal consequences. Depending on the
laws of their state, they may:
•

Be subject to criminal court jurisdiction for any subsequent offense committed as a juvenile

•

Have their conviction a matter of public record

•

Have to report their conviction in employment applications

•

Lose the right to vote, sometimes for life

•

Lose the right to serve in the military.

Prosecuting Juveniles as Adults Undermines Justice
The adult criminal system is designed for the prosecution of adults. The process is adversarial,
the structure is rigid and hierarchical, and no allowance is made for the limited experience and
understanding of a young mind. Judges and lawyers in adult court are not trained to understand
children's levels of cognitive development nor attuned to the way they speak. As a result,
children in adult criminal court are at a disadvantage as compared to adults in the same courts.
Recent studies on child development and competency question the extent to which young
children are able to assist counsel or understand the meaning of their legal rights given their
developmental immaturity and incapacity to understand the trial process.13 Defense lawyers and
child psychologists working with children in the adult system have identified some of the
disadvantages they face at each stage of the process:

12

Juveniles in Offenders in Criminal Court and Adult Prison, Legal, Psychological, and Behavioral Outcomes,
Jichared E. Redding, Jr., Juvenile and Family Court Journal, Winter 1999.
13
See, e.g., Thomas Grisso, The Competence of Adolescents as Trial Defendants, Psychology, Public Policy, and
Law, Vol. 3, No.1, March 1997; Recognizing the Child in the Delinquent, Kentucky Children’s Rights Journal,
Vol. VII, No. 1, Summer 1999.

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•

At arrest: children like talking to authority figures and will readily "confess" to police in
detail. They tend to over-implicate themselves -- young girls involved with older boys or
men will "protect" their male accomplices by taking on more responsibility than was in fact
theirs. Children lack time references and seldom narrate events with consistency, so that
their accounts of events appear to contradict themselves over time and may be discredited
before a judge or a jury.

•

At bail or bond hearings: the questions asked in adult court to set bond are not appropriate
for children, who are never employed, seldom own property, and frequently lack "ties to the
community." Judges often set bail that would be low for an adult but may be unattainable for
a child from a low-income family, and many children remain in jail on these low bonds.

•

At probable cause and preliminary hearings: adult courts are crowded and public
defenders or assigned counsel who represent poor people have many clients. Their first
interviews often last only a few minutes in a crowded lockup. Children are penalized by
their inability to prioritize facts and information to provide attorneys what they need to begin
work on the case.

•

In preparing for trial: children have difficulty remembering names and addresses, and
sorting out facts that are important to the adults defending their case. They frequently filter
out information they think is damaging and embellish whatever they think helps, under total
misconception as to which is which. They try to protect parents or elders; they idealize roles
and tell stories designed to picture the world the way they want it. Interviewing children for
trial preparation takes many hours more than for adults; and most attorneys do not have the
time required.

•

At trial: children make terrible witnesses. They appear to be without emotion when emotion
is eating them up. They are easily led; they are prey to cross examination that takes
advantage of "prior inconsistent statements," a child's desire to protect family or friends, and
simple language shortcomings. The very rules of evidence that work to get at the truth for
adults may obscure the truth when children speak in their own defense.

•

In plea negotiations: children have marginal competency to understand many aspects of the
court system but they suffer most in being asked to accept or reject plea offers. They are
likely to accept any arrangement that gets them "out" or home, and cannot grasp or act on the
significance of long term consequences, such as for failure to comply with terms of
probation. They barely grasp the significance of a sentence of months or years incarceration,
and are at a complete loss to weigh the strength of a case against them against their desire to
be free of prison "right away!"

•

At sentencing: even when facing less serious charges, children in adult court are penalized
because probation officers and others who recommend sentencing options are most familiar
with the needs and programs that work for adults and are generally not knowledgeable about
resources for children.

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Prosecuting Juveniles as Adults Undermines Public Safety
The usual rationale given for transferring juveniles to the criminal justice system is that more
severe punishment and less concern with rehabilitation will result in reduced crime and greater
public safety. However, studies comparing groups of similar juvenile offenders in the adult and
juvenile systems have repeatedly shown that the transfer policy has had exactly the opposite
effect from that intended.
•

•

•

A Florida study comparing recidivism rates for matched groups of youthful offenders
(comparable on the basis of the number and seriousness of past and current offenses
committed as well as sociodemographic characteristics) found that juveniles coming out of
the adult system were more likely to reoffend, to reoffend earlier, to commit more subsequent
offenses, and to commit more serious subsequent offenses than juveniles retained in the
juvenile system.14
A study of over 500 youth charged in Pennsylvania found that youths transferred to adult
court are more likely to be convicted and incarcerated but their recidivism rates are higher
than the rates for those who remain in juvenile court. 15
A study comparing 15-16-year olds charged with robbery in New York and New Jersey
found that the New York juveniles whose cases originated in criminal court were more likely
to reoffend and to reoffend sooner than the New Jersey juveniles whose cases were heard in
juvenile court.16

By contrast, evaluations of programs which provide intensive community- and family-based
interventions with delinquent, violent and substance abusing juvenile offenders have
demonstrated reduced crime and considerable cost savings. Programs such as Multisystemic
Therapy and Multidemensional Treatment Foster Care have been shown to substantially reduce
arrest rates and drug use among serious and chronic juvenile offenders who complete the
programs by comparison with control groups of similar non-participating juveniles – and they
cost far less to implement than they save in reduced criminal justice expenditures.17

14

The Transfer of Juveniles to Criminal Court: Does It Make a Difference? D. Bishop, C. Frazier, L. LanzaKaduce, and L. Winner, Crime & Delinquency, Vol. 42 No. 2, April 1996.
15
Excluding Violent Youths from Juvenile Court: The Effectiveness of Legislative Waiver, David Myers,
University of Maryland, 1999
16
The Comparative Advantage of Juvenile vs. Criminal Court Sanctions on Recidivism Among Adolescent Felony
Offenders, Jeffrey Fagan, Law and Policy, Vol. 18 # 1 and 2, Jan/Apr. 1996.
17
For detailed evaluations of these and other programs, see, e.g., Lawrence W. Sherman, et al., Preventing Crime:
What Works, What Doesn't, What's Promising, National Institute of Justice, 1997; Steve Aos, Polly Phipps, Robert
Barnoski, Roxanne Lieb, The Comparative Costs and Benefits of Programs to Reduce Crime, Washington State
Institute for Public Policy, May 1999; and the Blueprints for Violence Prevention series from the Center for the
Study and Prevention of Violence at Colorado University directed by Dr. Delbert Elliott.

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Summary
The move to send more children into the adult criminal justice system is a radical rethinking of
the traditional view that delinquent children need help to turn their lives around and belong in a
system that focuses primarily on rehabilitation rather than punishment. Remarkably, the nationwide transformation to this more punitive approach is taking place despite the continuing, multiyear, decline in juvenile crime.
As the number of juvenile cases heard in criminal court increases, more people involved in the
system are recognizing that adult courts are inappropriate and unjust settings for children whose
developmental immaturity puts them at a disadvantage at every stage in the system. There is
mounting evidence of the long-term and damaging consequences suffered by children who are
imprisoned in adult prisons and jails. Furthermore, the imposition of adult punishments, far from
deterring crime, actually increases the likelihood that a young person will commit further
criminal offenses.
The transfer of increasing numbers of children from juvenile to criminal courts is continuing in
the face of mounting evidence of the harm it does both to the children and to public safety – once
again “tough on crime” politics undermines good public policy.

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