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This is to certify that the
dissertation entitled
IN THE INTEREST OF JUSTICE:

A STUDY OF OUTCOMES OF PROSECUTORIAL
WAIVER IN MICHIGAN

presented by

John D. Burrow

has been accepted towards fulfillment
of the requirements for

Ph . D . degree in mammary

Social Science &
Criminal Justice

 

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. IN THE INTEREST OF JUSTICE: A STUDY OF OUTCOMES OF

PROSECUTORIAL WAIVER IN MICHIGAN
By

John D. Burrow

A DISSERTATION
Submitted to
Michigan State University

in partial fulfillment of the requirements
for the degree of

DOCTOR OF PHILOSOPHY

DEPARTMENT OF SOCIAL SCIENCES

1998

ABSTRACT

In The Interest Of Justice: A Study Of Outcomes Of Prosecutorial
Waiver In Michigan

By

John D. Burrow

The purpose of this study was to examine the influence of legal variables on the
waiver decision. More specifically, this research analyzed whether prosecutors place more
emphasis on legal factors such as age and the nature of the offense in their charging
decisions.

To examine this issue, all waived juveniles from 1988 to 1996 were analyzed. A total
of 577 juvenile offenders from one Michigan county comprised the final sample. The data
on these juveniles were obtained from the prosecutor’s office, the juvenile court, and the
Family Independence Agency. Logistic regression was the statistical method used in the
analysis.

The results showed that legal factors are the most important factors in the waiver
decision Though extra-legal factors such as the presiding judge and psychological history
may exert an influence, their impact on the waiver decision does not rise to the level of
influence of legal factors. The presiding judge was a significant extra-legal factor while race
did not have an impact on the waiver decision.

There are several implications of this research. The first issue concerns age. Most
of the juvenile offenders who were waived in this study were sixteen or seventeen years old.

This may call into question why states have continued to lower the jurisdictional age

necessary for prosecution as an adult given that it is a rare occurrence for all but older
juvenile offenders. Second, because there was a “judge effect,” there may be an need to
reconsider the utility of prosecutorial waiver. That is, there may be a need to refine waiver
statutes in order that personal and judicial philosophies of judges do not undercut the

decisions of prosecutors.

Copyright by
John David Burrow
1998

This dissertation is dedicated to my parents, Laura and JD. Burrow, and my sisters and
brothers who were always there when I needed them the most. In addition, this dissertation
is dedicated to the memory of my brother, Stanley, who told me several years ago that I had
the ability to go as far as I would let my imagination take me.

ACKNOWLEDGMENTS

I would like to express my thanks and gratitude to Professor Charles Corley, my
dissertation chairperson, for his helpful comments and advice during this project. I would
also like to thank Professor Christopher Smith for his help in keeping me focused on the
objectives of this research project and for offering both professional and scholarly advice
when I needed it most. Thanks are also due to Professor Cliff Broman and Professor
Katherine See whose patience and understanding helped to get me to this stage.

I would also like to extend my thanks and gratitude to Mr. James Belknap of FIA
who believed in the merits of this project and for helping navigate me through the data files
stored in the juvenile court. Also, I would like to thank Ms. Mary Johnson (Wayne County
Juvenile Court), Mr. Charles Thorton (FIA), Ms. Andrea Solak (Wayne County Prosecutor’s
Office), and Mr. Ben Blake (Wayne County Prosecutor’s Office) who all helped me secure
information for this project. In addition, I would like to thank the staff at the Wayne County
Intake and Court Services Unit, Ms. Kay Evans, Ms. S. Li gan, and Ms. Barbara Jackson who
all helped me locate “missing “ files and other information that was so essential to the
completion of this project.

From the School of Criminal Justice, I would like to thank the “Baker’s Dozen”-

Barbara Koons, Tracy O’Connel, Gwen Bramlett-Hecker, Kevin Gray, Don Hummer, Vic

vi

Burnphus, Pam Schram, Roger Donaldson, Jessica Davis, Aaron and Annen Weinrich, and

Mike Lawson. I really appreciate your all your help over the years.

vii

TABLE OF CONTENTS

List of Tables

CHAPTER 1
Introduction and Purpose

Statement of the Problem

Significance of the Problem

Three Waiver Mechanisms
Judicial Waiver Philosophy
Prosecutorial Waiver Philosophy
Legislative Waiver Philosophy

Michigan’s Experience with Waiver

Summary and Conclusion

CHAPTER 2
Foundations and Changes in Juvenile Court Philosophy

Introduction
Origin of the Juvenile Court
The Juvenile Court and the Right to Treatment
Conservative Philosophy and Classical Criminology
The Juvenile Court, Theory, and Waiver
Theoretical Implications

CHAPTER 3
Review of Research
Research on Judicial and Prosecutorial Waiver
Introduction
Empirical Realities of Waiver
Waiver Studies Conducted through Surveys
Summary

CHAPTER 4
Methodology and Proposal for a Study of Waiver in Michigan
Proposed Framework for a Study of Waiver
Data Collection

viii

 

xi

33
33
35

50
57
63

64

65
77
83

$3232

Variables 87

Hypotheses 90
Sample Size 91
Survey 93
Operational Definitions of Major Survey Items 96
Data 96
Method of Data Analysis 98
Discriminant Analysis 98
Logistic Regression 100
CHAPTER 5
Analysis of Data and Results 103
Description of the Population 103
Age, Sex, Race and Sentencing 105
Characteristics of Present/Instant Offense 107
Accomplices, Weapon Use, and Victims 108
Legal Factors (Statutory)— Recommendations,
Amenability, Threat, and Risk 112
Prior Offense and Previous Court Processing 114
Extra-legal F actors- Presiding Judge 1 15
Extra-legal Factors- Family and Employment 116
Extra-legal Factors- Substance Use/Abuse and
Mental Health 117
Summary of the Population 118
Bivariate Relationships 123
Legal Factors 123
Legal F actors- Prior Offense History 125
Legal Factors- Other Statutory Considerations 126
Extra-legal Factors- Offender Specific 129
Extra-legal F actors- Out of Home Placements
And Judges 130
Three Competing Logistic Regression Models 132
Summary 142
CHAPTER 6
Implications of Findings and Conclusions 144
Addressing the Hypotheses 146
Theoretical Implications 154
Limitations 157
Discussion 160
APPENDICES 168

Appendix 1 169

ix

Appendix 2
Appendix 3
Appendix 4

LIST OF REFERENCES

172
174
195

208

Table 1

Table 2
Table 3
Table 4

Table 5

Table 6

Table 7

Table 8

Table 9

Table 1 0

Table 11

Table 12

Table 13

Table 14

List of Tables

Cases Not Included Among Those Waived to
Adult Court

Summary of Total Waivers by Year
Summary of Sentencing Outcomes by Year
Summary of Age and Race by Sentence

Summary of Initial Charges Filed by
Prosecutor’s Office

Summary Table for Nature of Injury by Sex

Summary Table of Variables Affecting the
Waiver Decision

Bivariate Correlations

Logistic Regression Results for Predictors
Affecting the Sentencing Decision

Summary of Total Offenses Committed by
Waived Juveniles

Summary Table of Offenses Committed by Waived
and Retained Offenders

Relationship Between Presiding Judge and
Sentencing

Summary of Dispositions by Judge

Summary Table of Offenses and Dispositions

xi

92

104

105

106

109

112

120

133

135

147

149

151

152

156

Chapter 1

Introduction and Purpose
Statement of the Problem

Waiver is the process whereby juveniles are removed from the jurisdiction of the
juvenile court to the adult court. This removal may be based on factors such as 1)
arnenability to treatment, 2) dangerousness or protection of community, 3) nature of offense
in terms of severity or heinousness, and 4) subjective factors such as home environment or
pattern of living or any of the other guidelines enumerated in Kent (383 US. 541, 1966). It
is these factors which have given rise to the various mechanisms which are used to remove
juveniles from juvenile court jurisdiction.

This research will report the results of an investigation of prosecutorial waiver using
a sample of Michigan juveniles. Specifically, the research project will focus on the use of
prosecutorial waiver (concurrent jurisdiction) as a means of dealing with serious and chronic
juvenile offenders.

Prior to 1988, Michigan used judicial waiver, the most commonly used waiver
mechanism. Naturally, Michigan was one of forty-eight (48) states that used judicial waiver
to deal with serious and chronic juvenile offenders. In the fall of 1987, the Michigan
legislature began debate on a package of bills which sought to alter the manner in which
juvenile offenders were handled by the juvenile justice system. These bills called for the
expansion of prosecutorial power to make waiver decisions. Further, these bills enumerated
nine (9) offenses which were to fall within the discretion of the prosecutor to decide whether

the juvenile court should have jurisdiction or whether the criminal court would be a more

1

appropriate forum.

Given this, several proposed intentions guide this research. First, this research will
seek to identify the factors that contributed to the legislature’s decision to grant prosecutors
charging authority in juvenile matters. Second, this research will explore the expanded
authority of prosecutors to make waiver decisions. That is, the “Principle of Offense” will
be examined to determine if it is primarily legal factors that influence the decision to waive
youths to the adult court Third, this research will examine whether there are any
differences between those juvenile offenders who are waived to criminal court versus those
who are retained in the juvenile court. In other words, a profile will be generated as a means
to determine what makes waived juvenile offenders different. Fourth, this research will
examine whether waived juvenile offenders receive longer, more severe sanctions versus

those who commit similar offenses but are retained in the juvenile court.

Significh of the Problem

The issue of prosecutorial waiver is important for several reasons. To begin,
research on waiver is sparse. The usefiilness of the waiver has never been systematically
studied. Since 1970, there have only been approximately 30 empirical studies of waiver in
the United States (see Appendix 1 ). A recent examination of dissertation abstracts revealed
that since 1977, there have been only seven (7) doctoral dissertations which examined the
issue of waiver (see Eigen, 1977; Surrell, 1990; Lee, 1992; F eiler, 1995; Fritsch, 1995;
Pierce, 1995; and Podkopacz, 1996). Of these, six were written since 1990. There is clearly

a need for research in this area.

3

In addition, there are no studies of national scope which have examined prosecutori a]
waiver (Snyder and Sickmund, 1995287, also see Guttman, 1995 :5 2 1 ). Of the fourteen states
that use prosecutorial waiver (concurrent jurisdiction), systematic studies have been
undertaken only in Florida (see Bishop, Frazier, Lanza-Kaduce, and Winner, 1996; Bishop
and Frazier, 1991). There have been no such studies undertaken in Michigan even though
the state amended its waiver statutes in 1988 and again in 1996. Moreover, it is not clear
whether prosecutorial waiver (concurrent jurisdiction) is having any discernible effect on
the “perceived” escalating juvenile crime problem which prompted the initial changes in the
waiver statutes. Also, it is not clear whether those juveniles who are waived are receiving
longer sentences or more severe sanctions for their criminal offenses. Only a comprehensive
examination of prosecutorial waiver in Michigan can determine whether the desired effects
conceived of by the legislature have indeed manifested among juvenile offenders.

Some critics of prosecutorial waiver (concurrent jurisdiction) allege that prosecutors
may abuse their discretion when making charging decisions relative to juvenile offenders.
This allegation posits that the office of prosecutor is political in nature, thus, their charging
decisions are tainted by politics (Grundfest, Paskow, Szabo, and Williams, 1982). The sparse
research that exists in this area has not adequately addressed this issue.

Policy implications are inextricably tied to the issue of prosecutorial waiver.
The use of waiver suggests that some juvenile offenders are simply beyond the help of the
juvenile justice system and they, and society, are better served by trying them as adults. The
use of waiver mechanisms of any type suggests that certain juveniles are beyond the scope

or jurisdiction of the juvenile justice system. Though the original charter of the juvenile

4

court did make allowances for waiver (see Julian Mack, 1909), it did not suggest that
habitual, chronic, or serious juvenile offenders have the mental capacity of adults.
Prosecutors subscribe to a punishment orientation which is implicit in waiver. However, it
is not clear whether they make adequate findings of fact that juvenile offenders cannot be
rehabilitated within the juvenile court.

Some researchers have found that juvenile offenders who are waived recidivate at
a rate which is higher than that for juvenile offenders retained in the juvenile court (Bishop
and Frazier, 1996). If true, it might be that waiver has an enhancement effect which worsens
the offending of juveniles as opposed to making them more “responsible.” As such, one
could extend the arguments of Edwin Sutherland’s “Differential Association” which
suggests that juveniles actually “leam” more of crime when “captured” and housed in
restrictive environments such as prisons. Such an argument underscores the point that waiver
is not conducive to responsibility and rehabilitation but to greater criminogenic behavior
since the worst juvenile offenders are housed so closely together where they can “learn” the
attitudes and values needed to be a “better” criminal.

There are many unanswered questions about the issue of prosecutorial waiver
(concurrent jurisdiction). Only systematic research in this area will alleviate concerns
relative to recidivism, the influence of politics on waiver decisions, discretion, and
amenability to treatment within the juvenile system. We need more knowledge about these
issues before further changes are made to waiver statutes or other steps are taken which
would further erode juvenile court jurisdiction. However, before reviewing the research

literature relative to waiver, a discussion will be presented on the advantages and

 

5

disadvantages associated with using particular waiver mechanisms. In addition, a chronicle
of Michigan’s experience with waiver and waiver-related issues will be presented.
Three Waiver Mechgiisms

There are three primary mechanisms which set the waiver process in motion:
judicial, prosecutorial, and legislative. Judicial waiver is based on what could be termed the
principle of the offender or individualized justice. Prosecutorial and legislative waiver, on
the other hand, are based on the principle of offense. Prosecutorial waiver is one of three
waiver mechanisms that is used throughout the United States. However, only fourteen states
and the District of Columbia utilize prosecutorial waiver alone or in combination with
another waiver mechanism. All 50 states use some variation of these waiver mechanisms
and each has certain shortcomings. None are infallible but, they do all serve very different
purposes. In the pages that follow, a brief discussion will be presented outlining these three

waiver mechanisms and their strengths and weaknesses (see Appendix 2).

Judicial Waiver Philosophy

Judicial waiver refers to the process whereby a presiding juvenile court judge makes
the decision regarding the waiver or transfer process. In such instances, the juvenile court
judge must hold a waiver hearing which takes into account the best interests of the child and
the safety of the public (Champion and Mays, 1991 :68).

Charles Polen (1987) builds upon this imagery by suggesting that "judicial waiver
exists when juvenile court judges are vested with discretion in determining whether to

transfer juvenile offenders to criminal court for prosecution as adults. " (p.498) He notes that

6

this discretion is limited to the criteria outlined in Kent v. United States 1(383 US. 541,
1966) but judicial waiver decisions tend to rest most often on amenability to treatment and
dangerousness issues. He also notes that the instructions given by the Supreme Court relative
to judicial waiver are pertinent only to felony offenses (p.499).

There is general agreement among various authors who have addressed the issue of
judicial waiver that it is still a highly subjective process irrespective of the fact that Kent
attempted to standardize the criteria applicable to these decisions. Franklin Zimring (1982)

and Barry F eld (1989) are but a few who have addressed the weaknesses inherent within

 

The Kent decision provides the legal basis for waiver. In this case, the US. Supreme Court
expressed concern about the deprivation of rights of children. The Court stated that though juvenile
proceedings are supposedly civil in nature, they still tend to enjoin juveniles fiom receiving the care
and treatment that they so sorely need. As such, there may be grounds for concern that the child
receives the worst of both worlds: that he gets neither the protections accorded to adults nor the
solicitous care and regenerative treatment postulated for children.” (343 US. 556) Following the
Supreme Court’s ruling, eight guidelines were elucidated for subsequent waiver decisions. These
guidelines are as follows:

(1) the seriousness of the alleged offense tot he community and whether the community

requires waiver;

(2) whether the alleged offense was committed in an aggressive, violent, premeditated or

willful manner.

(3) whether the alleged offense was against persons or against property, greater weight

being given for offenses against persons especially if personal injury resulted,

(4) the prosecutive merit of the complaint, i.e., whether there is evidence upon which a

grand jury may be expected to return an indictment (to be determined by consultation with

the United State Attorney),

(5) the desirability of trail and disposition of the entire offense in one court when the

juvenile’s associates in the alleged offense are adults who would be charged with a crime

in the US. District Court for the District of Columbia;

(6) the sophistication and maturity of the juvenile as determined by consideration of his

home, environmental situation, emotional attitude and pattern of living;

(7) the record and previous history of the juvenile, including previous contacts with the

Youth Aid Division, other law enforcement agencies, juvenile courts and other

jurisdictions, prior periods of probation to this Court, or prior commitments to juvenile

institutions, [and]

(8) the prospects for adequate protection of the public and the likelihood of reasonable

rehabilitation of the juvenile (if he is found to have committed the offense) by the use of

procedures, services, and facilities currently available to the Juvenile Court. (343 US

$66,577)

7

judicial waivers. Zimring (1982) likens judicial waiver to capital punishment. Using this
analogy, he suggests that these two sanctions share several characteristics. First, he notes
that both are rare occurrences (low incidence). It is specifically this rarity which worries
Zimring in that he believes that it is impossible to develop guidelines which would absolve
these processes of discretion ( 1982: 194). He notes that both grant broad discretion to judges
who are responsible for implementing them. As such, the biases of the judges may play as
important a role in the process as the offender himself. He also suggests that their low
incidence may be a reflection of widespread mistrust that these sanctions are capable of
accomplishing their stated goals (1982:194).

Second, Zimring comments upon the lack of standards inherent within both
processes. One needs not to be reminded of pre-Furman capital punishment cases which
were deemed completely arbitrary and capricious. The same aura of capriciousness is
applicable to judicial waiver decisions irrespective of the Kent criteria especially in view
that individualized justice or "kadi-justice" pervades such decisions. He notes that

those courts that operate with long lists of standards to ‘guide' discretionary

decisions fare no better: the substantive standards are highly subjective, and

the large number of factors that may be taken into consideration provides

ample opportunity for selection and emphasis in discretionary decisions that

share the outcome of individual cases. (p. 195; also see Sorrentino and Olsen,

1977)

Third, Zimring comments upon the "ultimacy" of such decisions. "Transfer to
criminal court is the ultimate response available within the terms of reference to juvenile

court... Waiver represents a judgment that the person no longer merits the consideration,

regard, and special protection provided by law for juveniles." (p. 195) In this regard, once

8

waiver takes place, no matter the result, juveniles will forever be considered as adults. Thus,
such decisions should rest on stronger ground than what a judge believes to be in the best
interests of the child. A fifteen year old, for example, does not possess any other legal right
when waiver takes place except the right to punishment. As such, he or she is seen as an
adult only in the eyes of the juvenile court. Does the juvenile's status then exist in limbo until
he or she has reached the true age of majority? What interests are protected in view that the
youth is no longer considered a juvenile yet, he or she is not an adult according to
conventional legal definitions?

Last, Zimring (1982) addresses the issue of "dissonance". In this instance, both
capital punishment and judicial waiver seem curiously out of place given the presumption
that great value attaches to life, especially to that of youth. He writes that "the special
terminology, stated goals, and dispositional options associated with juvenile courts cannot
be made coherent without a theory that is suspended when the court for children expels its
subjects." (p. 195-196) How can one appropriately suggest that youth is valued when adult-
like responsibilities are heaped upon juvenile offenders? How can one hope to preserve the
philosophy of the juvenile justice system when judicial waiver decisions continually infuse
it with the characteristics of adult criminal courts, especially punishment? These actions
confound and blur the role of the juvenile court.

Barry F eld ( 1989) makes two criticisms of judicial waiver. The first criticism harkens
back to Franklin Zimring's comparison of j udicial waiver to capital punishment in that such
decisions are arbitrary, capricious, and not guided by nonnative legal standards. He writes

that

9

judicial waiver statutes, couched in terms of amenability to treatment or

dangerousness, are effectively broad, standardless grants of sentencing

discretion characteristic of the individualized, offender-oriented dispositional
statutes of the juvenile court. They are the juvenile equivalent of the
discretionary capital punishment statutes condemned by the Supreme Court

in Furman v. Georgia. (p.15)

Juvenile court judges unnecessarily add mystification to waiver decision making through
selective use of criteria that fit individual offenders. As such, there is no limit to the factors
that could be considered nor are there clearly defined parameters within which they must
operate.

Second, Feld indicates that interpretation of waiver statutes tend to vary among
judges. This is both a reflection of their judicial philosophies and the locales in which the
courts are located. He notes that

idiosyncratic differences in judicial philosophies and the locale of a waiver

hearing are far more significant for the ultimate transfer decision than is any

inherent quality of the criminal act or characteristic of the offending youth.

(p. 17) Thus, judicial waiver decisions tend to reflect justice by ideology and

justice by geography (see Feld, 1988b).

Of the subjective factors which may influence judicial waiver decisions, none are
more disturbing than the possibility that race may influence this decision. Yet, several
studies have examined this issue and found some rather surprising results. Keiter (1973), for
example, assessed the judicial waiver process in Cook County, Illinois and found that blacks
were vastly over represented among those who were waived regardless of offense. In
addition, Eigen (1981) found that there was a race of victim effect wherein inter-racial

felonies resulted in harsher dispositions than intra-racial felonies (p.1088). To allow a

decision of such magnitude to be marred by racial considerations demonstrates that judicial

10

waiver still allows subjective and perverse thought processes of j udges to roam free.

Prosecutorial Waiver Philosophy

Prosecutorial waiver, or concurrent jurisdiction, describes the process whereby the
prosecutor's oflice chooses the forum in which juveniles are to be tried for their offenses.
In such instances, prosecutors may, based upon their own discretion, file charges in the
juvenile court or bypass it altogether and file charges directly in criminal court (Champion
and Mays, 1981:70; Flicker, 198323-4; McCarthy, 1994:656-657). Prosecutorial waiver is
seen as a better alternative to judicial waiver in that it supposedly removes most of the
discretion from the waiver process. In such instances, the offense takes precedence above
all else. In addition, this choice of waiver tends to be contingent upon several other factors-
1) whether certain designated felonies have been committed by the offender, 2) age of
offender, and in some states, 3) the offense history of the juvenile (also see Mylniec,
1976:33-36; McCarthy, 1994:656-657; Sabo, 1996:2439-2443). Though this method of
waiver has been lauded as a tremendous improvement, there are still criticisms about its use.

Like judicial waiver, prosecutorial waiver has its proponents and detractors. One of
the champions of this waiver mechanism is Grundfest et a1. (1981). These authors identify
three specific areas which derive benefit from this waiver mechanism: 1) protection of the
interests of the child and society, 2) addition of beneficial information to the proceedings,
and 3) serves as an advocate for society. First, it is reasoned that participation of the
prosecutor is essential within the context of the adversarial nature of these proceedings. It

is noted that

 

11

the interests of society as well as the juvenile accused of violating the law are

best protected by the utilization of legal proceedings most appropriate to the

particular individual and offense in question. To be effective, this decision

must be founded on the fullest possible picture of all the circumstances

involved. (p.328)

One must question the utility of this argument though since it is unclear how the prosecutor
can adequately balance the needs and interests of the state with those of the juvenile,
especially within the context of an adversarial system. The prosecutor‘s main objective is to
seek retribution and punishment, concepts foreign to the juvenile justice philosophy and
antithetical to the needs of the child. For the most part, the prosecutor's office refrains from
focusing on the needs of the child since it must focus on building a case on objective,
provable fact. The needs of the juvenile tends to be subjective and theoretical, items which
are immaterial in a court of law’.

Second, Grundfest et al.('1981) suggest that the prosecutor is instrumental in adding
additional information to the waiver proceedings. It is supposed that this information lends
credence to both the needs of the state and the juvenile offender. They write that

the prosecutor possesses a unique ability to add a wide range of information

to this quest for the proper mode of proceeding against a juvenile. The
prosecutor and his representatives are involved in all areas of the criminal

 

Barry Feld (1987) takes the same position in his discussion of prosecutorial waiver. He notes that
the interests and welfare of the accused juvenile offender may be overlooked or forgotten
when this waiver mechanism is used given the adversarial nature of the prosecutor’s office.
Moreover, because prosecutors are more likely than juvenile court judges to be responsive
to political pressures and the visibility of serious offenses, more likely to emphasize
retributive considerations over rehabilitative ones, and, as adversaries, less likely to
consider the welfare of the accused, their charging decisions will more frequently
emphasize considerations of the offense, such as probable cause, and provable legal guilt,
than considerations of the offender. (p.514)

Thus, the concern that there is an insurmountable imbalance between the needs of the state and the needs of
the juvenile would seem to be justified.

 

1?

justice system, from investigation through grand jury, trial, and appellate

levels. Thus, the prosecutor obtains the broadest possible overview of the

criminal justice system and acquires an unparalleled opportunity to assess an

individual and offense in the perspective of other of other crimes committed

in that jurisdiction. (p.328)

Again, there is an issue of how much information the prosecutors could gather which would
demonstrate a lesser degree of culpability on the part of the juvenile. Further, there is an
issue of how carefully the prosecutor would scrutinize information relative to treatment
programs and services which would demonstrate that the juvenile could still be treated
within the juvenile system. Just how willing are prosecutors to forgo waiver for a treatment
option? Sadly, this is a question that has not yet been addressed in the research literature.

Grundfest et al. (1981) also note that the prosecutor assesses the offense within the
context of other crime that have been committed in the community. This should provide
little comfort to the juvenile in view that punishment, like the guiding philosophy of the
juvenile court, is relative and varies by jurisdiction. As such, the standards of the community
may prevail in these waiver proceedings irrespective of the information provided by the
prosecutor which may be beneficial to the juvenile. (c.f., Feld, 1988b)

Third, Grundfest et al (1981) suggest that the prosecutor serves as an advocate for
the community. That is, the prosecutor is charged with articulating the views of the
community which he or she represents. "The prosecutor is the representative of the society
which is[, in theory, victimized by the] criminal behavior [of] juveniles. Thus, it is
manifestly appropriate that his agency advocates society's position on the issue of how to

proceed against a particular juvenile offender." (p.329) Of concern here is the fact that the

prosecutor may be more concerned with scandal avoidance than the interests of the child.

13

As such, the waiver decision is very responsive to public outcry. This issue is inextricably
tied to politics, of which the prosecutor is keenly aware. Accordingly, one could suggest that
prosecutorial waiver tends to be guided by emotion more so than what the juvenile needs
(see McCarthy, 19941658).

This last point also happens to be one of the more prominent criticisms of
prosecutorial waiver, of which, there are three: 1) there is a lack of procedural safeguards
and failure to address amenability to treatment issues, 2) shows a shift in juvenile justice
policy, and 3) non-appealable decisions. On the first issue, Gasper and Katkin (1980)
indicate that prosecutori al waiver does not exist apart from the political arena. These waiver
decisions do not occur in isolation since, as an agent of the state, the prosecutor is buffeted
on all sides by political winds. These authors note that

it is a political fact of life the prosecutors must be concerned with their

conviction rates. Therefore, there is the possibility that they might be

inclined to waive cases to criminal court when their evidence is strong, and

leave them in the juvenile court when their evidence is weak. Prosecutorial

waiver decisions are particularly susceptible to political pressure (district

attorneys generally run for reelection more often than judges) and pressures

from the police with whom prosecutors must maintain cordial working

relations. (p.944)

In essence, prosecutors are captives, of sorts, of their office. They must quell public
discontent by demonstrating that they are tough on juvenile crime (thereby side lining the

interests of the juvenile) and they must appease those who form part of their work group if

they are to obtain the information that they need for their cases3. To this end, prosecutors

 

Sabo (1996) likens the tensions between the office of the prosecutor and the public to “serving two
masters.” She notes that
a prosecutor cannot serve justice when she must serve both the state and the best interests
of the juvenile at the same time. Moreover, her dual role compromises the premises of the

14

may be less zealous in giving consideration to the prospects of rehabilitation for certain
offenders within the juvenile justice system (also see Bove, 1991, Boyce, 1994; McCarthy,
1994; Guttman, 1995).

Second, critics of prosecutorial waiver point to the lack of procedural safeguards for
the juvenile. Further, there tends not to be any delineation of the criteria to be used with the
exception of offense and age. In their quest for retribution and punishment, prosecutors may
not consider whether the juvenile is amenable to treatment at all (see Boyce, 19942999;
Sabo, 1996:2441; Cintron, 1996:1270). This waiver mechanism bypasses scrutiny of such
factors. For example, Mylniec (1976) writes that

while statutes permitting adult treatment may have been meant to deal with

the hardened, incorrigible juvenile offender, the traditionally wide latitude

given to prosecutors regarding discretionary acts in the criminal justice

system creates a serious likelihood that the process may ensnare the wrong

child In the absence of proper exercise of discretion, the statutes can have

an unnecessarily harsh effect on first offenders. Without safeguards, these

laws may be applied to young children who may be permanently harmed in

the absence of sentencing guidelines, or correctional facilities designed to

separate young offenders from older, more experienced criminals. (p.36)

Central to this criticism is concern about the inappropriateness of this waiver provision for
certain offenders. In addition, there is concern that age and impulsivity are not given enough
weight when making this type of waiver decision (also see Bishop and Frazier, 1991 ; Hirase,
1992).

Third, critics of this waiver provision express concern about the shift in juvenile

justice philosophy. Here, the critics focus upon the fact that punishment and retribution are

 

juvenile justice system. As both a party to the suit and the representative of the state, a
prosecutor acting alone, in the absence of statutory criteria, is in a poor position to
represent the best interests of the child. (p.2451)

15

central components of this decision rather than whether the juvenile can be "saved" within
the juvenile justice system. Prosecutorial waiver sends the message that a get tough approach
is being adopted by the courts (also see Thomas and Bilchik, 1985; Boyce, 19942999;
Sabo: 1996:2447). Bishop and Frazier (1991), for example, note that

because prosecutorial waiver statutes greatly expand the power of

prosecutors- who historically have been more concerned with retribution

than with rehabilitation- widespread use of prosecutorial waiver seems to

signal a fundamental shift in delinquency policy away from the parens

patriae philosophy that is the cornerstone of the juvenile court and toward a

more punitive orientation characteristic of criminal courts. (p.255; also see

McCarthy,1994:665; Cintron, 1996:1270)

While prosecutorial waiver may not be the death knell for the two separate systems of
justice, it does suggest that the juvenile system is in a state of crisis. As such, the juvenile
court must re-evaluate its mission if it is to survive this assault.

Fourth, the critics of prosecutorial waiver lament the fact that such decisions, for the
most part, are non-appealable. It is charged that there is no process in place wherein the
decisions of the prosecutor can be reviewed to ensure that there are no factual errors in the
case. This may be attributable to the traditionally wide latitude given to prosecutors in their
charging decisions (see Mylniec, 1976; Flicker, 1983; Salazar, 1983; Guttman, 1995). It is
suggested that it is precisely because prosecutors possess so much latitude that there should
be some mechanism for review. Further, it is charged that prosecutorial waiver expands the
traditional function of prosecutors. It is contended that though discretion in bringing charges
against offenders is a necessary part of prosecutors’ jobs, it must still be structured and

constrained (see Boyce, 19942996). Allowing prosecutors wide latitude in deciding the

forum for prosecution unnecessarily expands this discretion without any benefit of checks

16
and balances. The choice of forum, it is suggested, carries as much importance as the final
disposition itself (Boyce, 19942997).

Last, prosecutorial waiver has come under scrutiny because of fear of inconsistency,
both real and imagined, in application of the law. It has been suggested that there is nothing
to prevent a prosecutor from refusing to charge a juvenile offender in criminal court though
he/she may have committed crimes similar to those which resulted in the waiver of others
(Boyce, 19942997; also see Salazar, 19832629; Hirase, 1992: 167). For example, Alan Salazar
points out that in Colorado, a state that uses prosecutorial waiver,

Colorado’s statutory scheme allows a prosecutor to charge one minor in

district court as an adult and another minor as a juvenile delinquent even

if the misbehavior or criminal conduct is the same. The prosecutor’s decision

to charge the child as an adult is therefore not based upon rationally distinct

offenses. (p.629)

Thus, the point remains that the application of prosecutorial waiver is arbitrary and
irrational. Though it has been argued that prosecutorial waiver is better suited to deal with
juvenile offenders who commit serious felony offenders, it is still susceptible to the charge

that too much discretion is vested in a single individual who makes decisions of such

tremendous consequences.

Legislative Waiver Philosophy
Legislative waiver is a procedure through which certain offenses are excluded from
the jurisdiction of the juvenile court. In other words, it delimits the breadth of cases that the

juvenile court can hear (Champion and Mays, 1991270). In addition, legislative waiver

 

17
affixes age requirements (automatic adulthood) to coincide with jurisdiction and forum. It
is reasoned that this procedure is really not a waiver mechanism at all but is more akin to
legislative exclusion whereby certain offenses are considered to be beyond the purview of
the juvenile court“.

There are two primary strengths associated with legislative waiver- l) constrains
discretion and 2) improves accountability. First, legislative waiver has been heralded as the
best way to remove discretion from waiver decisions. It is believed that, with the reliance
on totally objective and legally relevant criteria, biased or arbitrary decisions cannot be
made (see also Gasper and Katkin, 1980; Feld, 1987; Hirase, 1992; Singer, 1993). For
example, F eld (1978) suggests that the waiver decision making process should be built upon
a legislative matrix wherein age, offense seriousness, and offense persistence are used to
determine who should be beyond the jurisdiction of the juvenile court. He writes that

the matrix eliminates all discretion with respect to the decision to refer for

adult prosecution. Once the decision to proceed against the offender has been

made and the appropriate charge determined, the decision whether to

proceed in the juvenile court or the district court is made mechanically by

reference to the matrix. (p.588)

In actuality, this legislative scheme is troublesome for two reasons. The legislative

selection of an appropriate age is itself an arbitrary decision since it assumes that juveniles

 

Joseph Sanbom (1994), for example, takes issue with use of the term legislative waiver. He
believes that it is erroneous to use the term legislative waiver for several reasons. First, he suggests
that the legislature cannot actually waive juveniles because that is a power that is reserved for
prosecutors and judges (p.264). At most, he claims, the legislature can increase the charging
authority of prosecutors or reduce the jurisdiction of judges. Second, Sanbom believes that it is
inappropriate to use this term because the prosecutor “tightly controls” who is actually waived
through his/her charging authority. By electing to bring reduced charges or not filing charges at all,
the prosecutor can circumvent any legislative proscriptions on offenses for which juvenile offenders
may be charged. (p.264)

18

have reached a level of maturity which is reflective of adulthood. Also, there is the
assumption that persistence is indicative of non-amenability to treatment. One could make
the argument that continued offending may be more representative of inadequate or
improper treatment (all persistent offenders do not require the same type of treatment
program). Further, the argument could also be advanced that offense persistence reflects
inadequate supervision. The inherent flaw within legislative waiver schemes is that they are
in fact too mechanical. Can one truly suggest that a juvenile's social background is not
relevant to his or her success in rehabilitative programs? While too much discretionary
decision making in the waiver process is bad, there still needs to be a degree of flexibility
to allow decision makers to do what is really in the best interests of the child. It is
questionable whether legislatures are cognizant of these interests.

Second, legislative waiver is believed to increase accountability on the part of the
juvenile and adult criminal justice systems. F eld (1978) indicates that

the rehabilitative ideal has minimized the significance of the offenses as a

dispositional criterion. The emphasis on the 'best interests of the child' has

weakened the connection between what a person does and the consequences

of that act on the theory that the act is at best only symptomatic of real

needs... The results of efforts to treat offenders in the absence of an effective

change technology, in the face of inadequate resources and a lack of social

commitment to provide them, and through a process that grants discretion

without rational, objective basis for its exercise suggests that juveniles still

receive the worst of both worlds. (p.65)
This assertion is built upon several assrunptions. It assumes that juveniles would fare better
in the adult system but there is no recognition of the fact that there are as many resource

shortages in prisons and jails as there are in the juvenile justice system. There is also the

assumption that there is more of a willingness to treat and rehabilitate offenders in the adult

19

system than in the juvenile system. F eld (197 8) forgets that the mission of the adult criminal
justice system is punishment, not treatment. What's more, there is a paucity of treatment
programs in the adult system. Why would the public be more accepting of treatment in the
adult system than in the juvenile system? This is a question that F eld leaves unanswered. On
balance, there would not seem to be any more accountability in the adult system than in the
juvenile system.

There are two very prominent criticisms of legislative waiver- 1) it signals a
repudiation of the juvenile justice philosophy and 2) it denies juveniles rehabilitation, at
least in the juvenile justice arena. It has been suggested that legislative waiver is an
expression of the lack of confidence in juvenile court judges in general and a more specific
disenchantment with the juvenile justice philosophy. Feld (1987) writes that "exclusion on
the basis of offenses represents a legislative repudiation of the courts' philosophical premise
that it can aid those appearing before it by denying the courts the opportunity to try, without
even an inquiry into the characteristics of the offending youth. " (p.520; also see Polen,
1987 ; Evans, 1991; F eld, 1993) The problem is that legislatures really do not present a better
alternative to judges in making waiver decisions. Juvenile court judges tend to have a better
awareness of the problems and needs of the juvenile. They are closer to the community in
terms of advancing and defending its interests and values. Legislative waiver tends to take
an "one size fits all" mentality by suggesting that juveniles who fit a certain profile, as
determined by offense and age, are beyond the help of the juvenile system. Such as blanket
policy unnecessarily penalizes juveniles and denies many of them the fundamental right to

treatment.

20

In fact, the second criticism of legislative waiver is that it denies juveniles
rehabilitation in the proper juvenile justice arena. Marshall Young (1982) finds this waiver
provision unpalatable because it considers only the offense and the history (criminal) of the
juvenile but not the circumstances surrounding the offense or the circumstances of the
juvenile (p.316; see also Polen, 1987). Similarly, Hirase ( 1992) notes that

transfer occurs regardless of the offender's amenability to treatment and

rehabilitation in the juvenile system. The legislative waiver system provides

no discretion in deciding whether to waive, and does not consider anything

about the child, except the crime committed, his or her age, and past criminal

history. (p. 166)

This would suggest that guided discretion is good within an acceptable range relative to
waiver decisions. However, legislative waiver rules out any possibility that mitigating factors
could be considered irrespective of whether the juvenile belongs in the adult criminal
system.

As indicated in the aforementioned pages, there are three types of mechanisms that
are currently used to trigger waiver to adult criminal court. The first mechanism, judicial
waiver, is the most common waiver mechanism as it is used in forty-eight of fifty states. As
its name implies, the juvenile court judge is the central figure in judicial waiver. The
decision to waive jurisdiction is entirely at the discretion of the juvenile court judge after
he/she holds a hearing which weighs the best interests of the child against those of the
community. It is this wide discretion that is most troublesome for critics of j udicial waiver.
Such critics believe that extra-legal factors such as race may be inappropriately used in these

decisions. Also, there is concern about the disparate sentences that are given to juvenile

offenders who commit similar offenses.

21

The second mechanism, prosecutorial waiver, expands the charging authority of the
prosecutor. That is, the prosecutor can determine which forum in which to try the case,
juvenile or adult, if certain conditions such as age and certain designated offense are met.
It is for this reason that prosecutorial waiver is often referred to as concurrent jurisdiction.

Prosecutorial waiver also has its detractors. Critics charge that prosecutorial waiver
unnecessarily expands the power of the prosecutor. In addition, critics charge that the nature
of the prosecutor’s office increases the likelihood of politicization cases often to enhance
the notoriety of the prosecutor himself/herself. Further, critics suggest that such
politicization allows for disparity in the punishments that are meted out to juvenile
offenders.

The third mechanism, legislative waiver, is the least used type of waiver. Often
referred to as legislative exclusion, this waiver mechanism excludes certain offenses form
the jurisdiction of the juvenile court. In addition, this waiver mechanism exempts certain age
groups from juvenile court jurisdiction. Though lauded as the best way to remove discretion
from waiver decisions, legislative waiver is still problematic for a few reasons. First, its age
requirement is artificial and arbitrary. Second, it denies rehabilitation to some offenders who
may still be salvageable within the juvenile justice system.

Though the aim of this research is not to determine which mechanism is best, it will
seek to gain a better understanding of prosecutorial waiver. This research will explore
whether the expanded charging authority of prosecutors has resulted in more severe
punishments for juvenile offenders. In addition, this research will examine whether the

“Principle of Offense” is the primary factor behind the decision of prosecutors to waive

22

jurisdiction to adult criminal court. Relatedly, this research will seek to uncover the
differences between juvenile offenders who are retained in the juvenile court versus those

who are waived to criminal court.

Michigan's Experience with Waiver

The state of Michigan's modem-day experiment with waiver goes back to 1972. It
was at this time that a statute was outlined which expressly addressed the issue of juvenile
waiver. In essence, this statute established that waiver was permissible for juveniles
provided that they committed a punishable felony and were at least 15 years of age’. More
specifically, this statute reads

[(1)] where a child [who has attained] the age of 15 years is accused of an act

the nature of which constitutes a felony, the judge of probate of the county

wherein the offense is alleged to have been committed may [waive

jurisdiction pursuant to this section upon motion of] the prosecuting attorney,

whereupon it shall be lawful to try such child in the court having general

criminal jurisdiction of such offense. (M.S.A. §27.3178 (598.4); see also

M.C.L.A. §712a.4)

This statute seems to be in compliance with the Kent criteria wherein it is required
that notice be given to the child, attorney, and parent that the court is filing a waiver motion.

Also, this statute outlines the criteria that the judge is to consider when making the waiver

decision as specified in the Kent decision. These criteria include

 

M.C.L.A., ch.64 §2012 (1915) also provided for the criminal prosecution of juveniles. While the
express purpose of this provision was to establish the jurisdiction of the probate court, it also
indicated that proceedings under this act shall not be deemed to be criminal proceedings and this act
shall not prevent the trial by criminal procedure in the proper courts of children over fourteen years
of age, charged with the commission of a felony. (also see M.C.L.A., ch.64, §2016 (1915);
M.C.L.A., §712A.4 (1948) In addition, Moore and Bartlam (1986236) point out that the
antecedents to the modem-day waiver law date back to 1939.

23
(a) the prior record and character of the child, his physical and mental

maturity, and his pattern of living, (b) the seriousness of the offense, (c)

whether the offense, even if less serious, is part of a repetitive pattern of

offenses which would lead to a determination that the child may be beyond

rehabilitation under existing juvenile programs and statutory procedures, (d)

the relative suitability of programs and facilities available to the juvenile and

criminal courts for the child. [and] (e) whether it is in the best interests of the

public welfare and the protection of the public security that the child stand

trial as an adult offender. (M.S.A. §27.3 178 (598.4); also see M.C.L.A.

§712A.4)

Still, some of the items contained in this statute are problematic.

First, several of the items within the criteria are vague. For example, determinations
about the character of the child is a very subjective process. There are no indications as to
what the general standards should be for making what are tantamount to value judgments.
In addition, one does not know what aspects of the child's character would turn the decision
in favor of waiver to criminal court. Second, there is no mention of a standard relative to
amenability to treatment. While this statute does provide for the consideration of whether
the "... child may be beyond rehabilitation..." one is unsure as to how much emphasis is
given to the treatment prospects of the child. This omission is noted in two cases, People v.
Schumacher (1977) and People v. Durham (1985 ). In both cases, it was noted that

although our statute and court rule do not speak in terms of 'amenability,’ we

discern within them an intention that the juvenile's prospects for
rehabilitation be seriously considered. Otherwise, our duty of liberal
construction, aimed at providing care, guidance, and control similar to that

provided by the child's parents would have little meaning in that instant
setting. (256 NW. 2d 39,1977; 377 NW. 2d 262, 1985)

One can only assume that the Court of Appeals and the Supreme Court of Michigan were
keenly aware of the fact that juveniles should be given a reasonable Opportunity to be

rehabilitated within the juvenile system. This statute seems to take an offense-centered

24

approach where repetitive offending is seen as an indicator that the child cannot be helped
within the juvenile system and not whether the child may respond to treatment. Third, there
is some concern about the "suitability of programs" standard. One is unsure as to whether
this criterion means appropriate treatment programs which target specific types of offenders
or whether resource issues would preclude suitability and amenability. This difference
escapes the attention of the drafiers of this statute. While these may indeed be very minor
concerns, they do suggest that a degree of clarification is needed relative to this statue (see
People v. Schumacher, 256 NW. 2d 39, 1977).

Information collected by Hamparian et al. (1982) on the state of Michigan provides
some insight as to how waiver was working in 1978. This information gives an indication
of who was touched by waiver and the extent of its use. First and foremost, they found that
forty-seven percent of all waivers in the state occurred in the most populous county, Wayne
County (p. MI-S). In total, nine counties accounted for seventy-three percent of all waivers
within the state (p. MI-8). Also noteworthy is the fact that those waived tended to fit a
certain profile- male, 16 years of age, and minority background (p. MI-8; also see Keiter,
1973)

In 1978, there were a total of eighty-six juveniles waived to criminal court in the
state of Michigan. Personal offenses accounted for seventy-six of these waivers while
property offense accounted for ten percent of the waivers (p. MI-9). By far, the most
common offense which warranted waiver was murder/manslaughter (31) followed by
robbery (16), aggravated assault (6), and burglary (6) (p. MI- 1 0). Thus, it seems that judicial

waiver had been living up to the expectations of the legislators responsible for passage of

25
the statute. The most serious offenses (felonies) were in fact being targeted for waiver.
Moreover, the vast majority of those offenders committing felonies were waived to criminal
court In addition, thirty-one of those actually convicted were sentenced to an adult
correctional facility while only one was given probation (Hamparian et al., p.MI-13).
Though it appears that judicial waiver was achieving its desired objective, there was
still growing disenchantment with the fact that violent crime was increasing not only in the

state of Michigan but also at the national level". This disenchantment culminated in the

 

To get an idea of the magnitude of the crime problem, Juvenile Court Statistics were examined
from 1984 to 1988. These statistics are prepared by the Office of Juvenile Justice and Delinquency
Prevention. These statistics were compared with crime figures compiled by the Michigan Justice
Statistics Center from 1984 to 1988. The following trends were observed:

National“ Mm"
1984 1985 1986 1987 1988 1984 1985 1986 1987 1988

Index

Violent 61400 70000 64000 68400 2213 2412 2592 2624 2054

Property 442400 496000 498000 503000 15878 14873 16029 16620 15753
Non-index

Drug 64600 73000 73 700 80200 1044 1 147 1017 1214 1488
Percent Change

Violent 4.7 6.1 5.6 5.9 5.9 6.3 6.3 6.2 5.2

Property 33.9 43.2 43.5 43.5 42.9 38.8 39.2 39.3 40.0

Drug 5.0 6.4 6.4 6.9 2.8 2.9 2.4 2.8 3.7

* Source- Juvenile Court Statistics
" Source- Michigan Justice Statistics Center

 

These figures suggest that violent crime in Michigan was relatively stable. That is, there were no dramatic
swings in the number of violent crimes that were committed. However, the violent crime rate in Michigan
was higher than the national average. It is interesting to note that drug related crimes in Michigan were well
below the national average. This point is salient given the emphasis placed on Detroit during the early stages
of the “war on drugs.” The drug scene in Detroit was heavily scrutinized by local and national media and it
was labeled as one of the most notorious and violent in the country. As such, Detroit was named as one of
twelve sites for a regional anti-crime task force established by the federal government (see Canty, 1996).
However, the figures for drug—related crimes suggest that such heightened scnrtiny may have been
misplaced.

26

amendment of the waiver law in 1988 which conferred upon prosecutors the power to make
waiver decisions (prosecutorial waiver). The course of events leading up to this amendment
will be briefly discussed in the next few pages.

In 1987, the Michigan House of Representatives began debate on a package of hills
which would amend the juvenile code and give prosecutors expanded power to make waiver
decisions. This proposed statute change would also amend and revise the criteria for
consideration in making waiver decisions. The impetus for this change grew out of a concern
that the number of hardened, serious juvenile offenders was increasing at both the state level
and nationally (see House Legislative Analysis Section, HE. 4731 et a., 8-19-87). This
concem would seem to be borne out through statistics obtained from Juvenile Court
Statistics (1988) which showed that in the four year period from 1984 to 1988, personal
offenses increased by 10.2% among juvenile offenders. It would seem that there was a valid
concern within the public that a new strategy had to be found to deal with these juveniles.

Many of the legislators who supported changes in the law believed that by providing
stiffer punishments and longer sentences, juvenile offenders would be forced to take
responsibility for their actions. Such juveniles would be forced to recognize that their actions
could pose serious consequences as far as severe punishment is concerned (see Duranczyk
et al., 1988; House Legislative Analysis Section HB. 5203, 12-16—87; House Legislative
Analysis Section, HB 4730 et al., 8-19-87; House Legislative Analysis Section, HE. 4731
et al., 7-26-88). Further, proponents of change in the waiver statute believed that the current
judicial waiver system was too cumbersome, especially where crowded court dockets

prevented some juveniles from getting the immediate treatment that they needed. As such,

27
greater flexibility was sought by empowering prosecutors to make waiver decisions (see
Duranczyk et al., 1988; House Legislative Analysis Section, HE. 4830 et al., 8-19—87; House
Legislative Analysis Section, HE. 4731 et al., 7-26-88).

House Bill No. 5203 sought to amend and improve upon the waiver language that
had been outlined in M.S.A. §27.3178(598.4). By way of comparison, the new bill retained
the criteria outlined in items a, b, and e (see M.S.A. §27.3178(598.4) but added the
following criteria- "(c) whether the offense is part of a repetitive pattern of offenses which
would lead to [one] of the following determination: (i) the child is not amenable to treatment
[,and] (ii) that despite the child's potential for treatment, the nature of the child's delinquent
behavior is likely to disrupt the rehabilitation of other children in the treatment program [,]
whether despite the child's potential for treatment, the nature of the child's delinquent
behavior is likely to render the child dangerous to the public if released at the age of 19 or
21 [,and] (e) whether the child is more likely to be rehabilitated by the services and facilities
available in adult programs and procedures than in juvenile program and services." (M. S.A.
§27.378(598.4); House Bill No. 5203) These changes in the language of the law were an
attempt to add clarity to the waiver provisions. However, there still remained a few
troublesome issues.

The legislature still did not clarify "amenability to treatment". An argument that
could be made relative to this term is that amenability has a reliance on prediction of
outcomes, a capacity that is beyond judges, prosecutors, clinicians, and legislators. One
cannot predict the efficacy of treatment programs with any degree of certainty considering

the multitude of factors which impinge upon the juvenile such as environment and

28

"character". Further, it seems that the legislators are of the opinion that rehabilitation
programs in the adult system may be better than those in the juvenile system. However, there
is no indication of greater treatment success of such programs. Martinson's ( 1974)
observation that "nothing works" is just as applicable to the adult system as to the juvenile
system. Treatment programs in both systems lack proper resources. Beyond this, the goal of
the adult penal system tends to be one of punishment so, one would think that there would
be less emphasis on treatment even though these goals are not mutually exclusive. Is the
primary factor then the amount of time during which juveniles would be exposed to such
treatment programs? An answer to this question is not provided by the legislature.

Several counter arguments are worthy of mention relative to House Bill No. 5203.
Some called the new waiver provision a simplistic solution to a national problem (House
Legislative Analysis Section, H.B. No. 5203, 12-16-87; House Legislative Analysis Section,
H.B. 4730 et al., 8-19-87; House Legislative Analysis Section, H.B. 4731 et al., 7-26-88).
This argument suggests that the new waiver provision would effectively allow the state to
write off salvageable young juveniles. Further, evidence suggested that the problem of
overcrowding in the state's prisons and court dockets led some judges to sentence these
serious offenders to relatively shorter terms than would normally be expected for crimes of
such magnitude thereby exacerbating the "leniency gap" (House legislative Analysis Section,
H,.B. 5204, 12-16-87; House Legislative Analysis Section, H.B. 4730 et al., 8-19-87; House
Legislative Analysis Section, H.B. 4731 et al., 7-26-88). Thus, the actual purpose and intent
behind waiver is thwarted. Other arguments suggested that the best way to deal with serious,

violent, and chronic offenders is to automatically try them as adults but allow the criminal

29

courts to place them in the juvenile system following trial (House legislative Analysis
Section, H.B. No. 5203; 12-16-87; House Legislative Analysis Section, H.B. 4730 et al., 8-
19-87; House Legislative Analysis Section, H.B. 4731 et al., 7—26-88).

Catherine Bove (1991) specifically addressed the changes in the Michigan waiver
law. She indicates that as a result of the changes in statutes, Michigan joined states such as
Florida and Utah with dual waiver systems. Such a system, on the one hand, would place the
discretion to waive cases to criminal court in the hands of the prosecutor and, on the other
hand, retain decision making power with juvenile court judges. She suggested that many
state legislators fully believed that juveniles were cognizant of the limitations on the juvenile
system and used them to their advantage (1991: 1086). This dual system would then remove
the incentive to attempt to abuse the juvenile justice system.

She also made observations about some of the reservations that legislators had
concerning the new law. For example, some critics of the new legislation opined that
prosecutors were being given too much discretion in that the law would simply allow them
to screen cases to determine whether "... to recommend a warrant, or to seek a permissive
waiver form juvenile court, or simply file charges in juvenile court." (1991:1087) Under
such conditions, the youth and his/her defense counsel may be subject to different policy and
procedures in every county since there will inevitably be inconsistency in the manner is
which prosecutors pursue charges.

Bove also called attention to the lack of proper resources and facilities within the
juvenile and adult systems. In order to meet the resource demands that the changes in the

waiver law would hoist upon them, resources would have to reallocated away from services

30

and programs that would most likely reform less serious offenders (1991:1089). It was
estimated that approximately fifteen new 64 bed facilities would have to be built to
accommodate these juveniles (House Legislative Analysis Section, H.B. 5203, 12-16-87;
House Legislative Analysis Section, H.B. 4730 et al., 8-19-87). Fiscal projections indicated
that annual costs and expenditures for three years alone would be approximately $72 million
dollars (House Legislative Analysis Section, H.B. 5203, 12-16-87; House Legislative
Analysis Section, H.B. 4730 et al., 8-19-87) Thus, it could be assumed that the benefits that
would accrue to the public, in terms, of safety, would outweigh the costs of building these
new facilities.

While Bove contends that many of the arguments in opposition to the new waiver
law lack merit, she concedes that there are no clear guidelines to guide local prosecuting
attorneys. As a result, she foresaw the possibility that great disparity could exist among
prosecutors from the various counties throughout the state (1991:1095). Here, the issue is
one of consistency. Outside of the criteria outlined in House Bill 5203, prosecutors and
judges of the state are really no better off than before the change went into effect.

As a means of demonstrating that the new waiver law had not yet removed the
discretion from the decision making process, one can turn to a report on discretionary waiver
(prosecutorial waiver) prepared by Marjorie Gutske (1989) for the Office of Children and
Youth Services. She found that

the use of discretionary waiver [was] not resulting in a lot of tough

sentences to DOC for juveniles. In fact, the discretionary waiver actually

calls for a more limited jurisdiction by only allowing the waiver of j uveniles

who have committed a class IA felony... In the time period, 92 % of the
juveniles waived with the traditional waiver were of a minority race. This

31

appears to demonstrate that it may be easier to waive juveniles depending on
factors other than just the crime committed. These waivers are based on
possibly biased judgments of the individual juveniles, rather than determined
by the seriousness of the crime. (p.11)
In either case, the state legislators seemed to be engaging in wish fulfillment in believing
that waiver could deliver on all the promises made to the community. As such, a need has

been demonstrated that strict criteria are needed to guide not only judges but also local

prosecutors.

Summag and Conclusion

Of the three types of waiver presented and discussed, judicial waiver seems to be the
best method for disposing of juveniles who are beyond the help of the juvenile justice
system. Unlike prosecutorial and legislative waiver, it ensures that the procedural and
constitutional rights of juveniles are protected and it assures consideration of appropriate
mitigating and aggravating factors. Moreover, with some refinement of "dangerousness" and
"amenability to treatment," judicial waiver could eliminate some of the discretion possessed
by juvenile court judges. Judicial waiver seems to be the best method to ensure that juvenile
offenders are not arbitrarily removed from the protection of the juvenile justice system.
Further, the use of judicial waiver refrains from making arbitrary determinations of
adulthood without consideration of factors such as sophistication, "environment", and
”pattem of living".

As has been earlier suggested, prosecutorial waiver signals a shift in the philosophy

of the juvenile court. Where once treatment was the primary goal, punishment has now

32
superceded this function so much so that many states have rewritten the purpose clause of
the juvenile court to reflect this new punishment orientation. This new orientation greatly
diverges from the original principles of the juvenile court. Some commentators have
suggested that the juvenile court was due for such a change in that the “justice pendulum”
now reflects the attitudes of the broader society. Writers such as Sanford Fox ( 1970a and
1970b)) and Robert Mennel (1973) have voiced such sentiments and even go so far as to say
that the juvenile court has always been an instrument used to keep juveniles in their place.
So, it should come as no surprise that waiver has been added to the court’s arsenal. At the
same time, other commentators have suggested that these are dangerous times for the
juvenile court and it is in danger of extinction. What is behind this change in the juvenile
court’s philosophy? Are such changes a part of an inevitable evolution of the juveniles
court’s purpose? Questions such as these will be addressed in the following chapter which
a) briefly recounts the history of the juvenile court and b) documents some of the changes

which have taken place in the court’s philosophy and function

Chapter 2

The Foundations and Changes in Juvenile Court Philosophy

Intrgiuction

Much commentary has been presented over the last decade which suggests that the
juvenile court has outlived its usefulness. Where once there was a supposed benevolent
attitude, at the dawn of the juvenile court era, toward those deemed in need of the state’s
protection, there is now a harsh edge to the justice which is meted out to juveniles. Where
once it was thought juveniles could be transformed if changes were effected in their attitudes
and environments, there is now a cry for protecting communities (or society) from these
uncontrollable and dangerous juveniles. What’s more, there is the suggestion that juveniles
need to be protected from their own destructive ways.

These changes in attitude did not just materialize over night. In actuality, they have
seemingly occurred when there was fear that children were being lost. During the 1890’s and
early 1900’s, there was pervasive fear that children were being lost to poverty and idleness
(see Sanford Fox, 1970). During the 1960’s and early 1970’s, it was thought that children
were being lost to a culture of drugs and depravity (see Justine Wise Polier, 1989). Since the
mid— to -late 1980’s, it has been thought our children are being lost to a culture of violence
wherein drugs, guns, and misery brought on by the living conditions in our urban centers are
subjecting them to conditions reminiscent of war (Polier, 1989). In such a culture, children

have no respect for law and conventional norms, they have no sense of accountability or

33

34

appreciation of the gravity of their actions, and they have no respect for the sanctity of
“person” and life.

The philosophy of justice which has evolved out of this culture is one of restoring
accountability for one’s actions and restoring respect for the law. Such a philosophy may be
called a conservative view of justice. For some, this philosophy may be called a “just
deserts” model of justice. The underlying premise of such a view is that juveniles must be
taught that there are consequences for their actions. What’s more, the notion of
proportionality or commensurability is interjected as a means of dispensing justice.

It should come as no surprise that this “just deserts” model has roots in the classical
school of criminology. The question though is why has the juvenile justice system seemingly
ended up where it began Why has the juvenile justice system reverted to a more punitive
approach in dealing with adolescent offenders? Has the system of juvenile justice indeed run
out of ideas and now is a bankrupt institution? Answers to these questions should provide
insight into the problems which have plagued the juvenile justice system since its inception.

The purpose of this chapter is to reflect upon the intent and purpose of the juvenile
justice system. Specifically, this chapter will address the following issues: 1) the origin of
juvenile justice, 2) the treatment approach to juvenile justice, and 3) the punitive approach
to juvenile justice. In addition, this clmpter also has a secondary purpose in terms of
examining the rationale of Matza’s notion of the “Principle of Offense”. This theory also
provides the justification for the juvenile court’s movement away from “kadi justice,”
wherein subjective non-legal factors allowed judges wide discretion to make waiver

decisions, to the “Principle of Offense” and punitive juvenile justice which focuses only on

35

legally relevant factors.

Origin of the Juvenile Court

The invention of the juvenile court was seen as the dawn of a new era in the way
children were treated in society. The juvenile court was deemed a rational approach to deal
with the ills of society and those children who were unwittingly influenced by the dark
forces of society. It was believed that through the juvenile court, children who had been
abandoned or abused or those who were destitute or indolent could get the help that they
needed so that their lives could be turned around The juvenile court was premised upon the
assumption that the state was the ultimate guardian of children. Parens patriae, upon which
this notion of guardianship was founded, bestowed upon the state the duty to act as protector
and chief advocate for children. It must be noted that parens patriae was a concept
transplanted fi’om the English Clmncery Courts wherein the Crown was guardian and
protector of the neglected and abandoned. The incorporation of delinquency into this
doctrine is a more recent phenomenon (Fox, 1970a21 192).

The forces which gave rise to the juvenile court can be found in the “child saving”
movement The “child savers” were composed of a group of progressive reformers who
believed that poverty was the root of children’s problems and that crime was but a
manifestation of it. As such, this movement went about trying to alleviate the suffering
which children endured because of their poverty stricken status. A remedy was found in the
so called “House of Refuge.”

Houses of Refuge sprang up in all the large eastern cities such as Boston, New York,

36

Philadelphia, and Baltimore. They were premised upon the assumption that children could
be saved a future life of crime if they were removed from environments which were
conducive to indolence, ignorance, pauperism, and disease. As such, they embraced the
poor, neglected, abandoned, and orphaned. Thomas Mennel (1973) suggests that these
refuges were all-encompassing as can be exemplified by the Boston House of Refuge which
“.. received all children who live[d] an idle or dissolute life, whose parents [were] dead or
if living, from drunkenness, or other vices, neglect[ed] any suitable employment or
exercise[d] any salutary control over said children.” (p.13)

Those who supported the Houses of Refuge believed that children should be provided
with those things which they were not getting at home- discipline, religious instruction, and
education (training through apprenticeships). The Houses of Refuge were adamant about
establishing routines for the children whereby middle class values could be inculcated within
them (Menne1218). At the same time, the refuges were very strict in terms of discipline
whereby questioning authority and rejecting the “help” which one was receiving was
expressly forbidden. Punishment, like the rehabilitative process of the juvenile court which
would follow, was individualized (Mennel: 19). Lastly, education was provided to the
children through a system of contract labor and apprenticeships which supposedly paved the
way for the children to become independent and earn their own livelihood (Menne1221; also
see Kelling, 1987241).

Corroboration of these precepts are provided through the works of both Sanford Fox
(1970a) and Anthony Platt (197 7) who both believed that the House of Refuge and the “child

saving” movement was a cloaked attempt to bring more children, whose only misfortune

37

was that they was poor, under the aegis of state control. For example, Fox comments upon
the language that was frequently used to describe those who were to be helped by the refuge.
Hostility and disdain were clearly evident in the following passage which was ascribed to
Thomas Eddy of the New York House of Refuge-

these little vagrants, whose depredations provoke and call down upon them

our indignation are yet but children who have gone astray for want of that

very care we exercise towards our own. They deserve our censure, and a

regard for our property, and the good of society, requires that they should
be stopped, reproved, and punished. (1970:1194)

It appears that Eddy subscribes to the belief that saving the poor (the middle class version
of noblesse oblige) is a duty which must be undertaken for the betterment of society. Though
despised, some of the poor were believed to be salvageable. That is, they could be deterred
from a future course of criminality. This belief may have provided the impetus for
indoctrination within the poor of middle class values.

There is conunentary upon the fact that poor children were constantly barraged by
middle class values such as emphasis upon subservience to authority, thrift, self-restraint,
and self-discipline. What’s more, it has been suggested that “child saving” was nothing more
than a attempt to preserve the preeminence of traditional middle class values in the face of
turbulent changes which were transpiring in the cities. Anthony Platt (1977) notes that

child saving may be understood as a crusade which served symbolic

and ceremonial functions for native, middle class Americans. The

movement was not so much a break with the past as an affirmation

of faith in traditional institutions. Parental authority, home education,
rural life, and the independence of the family as a social unit were
emphasized because they seemed threatened at this time by urbanism
and industrialism. The child savers elevated the nuclear family, especial-
ly women as stalwarts of the family, and defended the family’s right to

38

supervise the socialization of youth (p.98)

The aforementioned passage suggests that the family was conceived along middle
class ideals. Under such a conception, children were defined as helpless, weak, and
impressionable. The “child saving” movement realized its end goal by relegating children
to dependent status within the family. Children were not seen as independent actors
possessing a will capable of acting upon their environments. Instead, the view of them was
akin to blank slates which are acted upon by forces from their surroundings (Kelling,
1987 :43 ). If such children were not given structure and guidance, they were prone to mimic
or imitate patterns of destructive behavior with which they have come into contact With this
in mind, Platt writes that

many of the child savers’ reforms were aimed at imposing sanctions on

conduct unbecoming youth and disqualifying youth from the benefit of

adult privileges. The child savers were more concerned with restriction

than liberation, with protection of youth fi'om moral weaknesses as well

as fiom physical dangers...

They were active and successful in extending governmental control over

a whole range of youthful activities that had been previously ignored or

dealt with informally. Their reforms were aimed at defining and regulating

the dependent status of youth (p.99)

While it is very apparent that the “child savers” were mainly interested in preserving
the family, they tended to resort to drastic measures that were often not “family fiiendly.”
First, it has been documented that poor children were removed form their families simply
because of their economic status (see Fox, 1970a; Platt, 1977). Second, children were

“placed out.” That is, some were apprenticed to other families or businesses so that they

could be taught a useful skill. This was all a part of the “new education” which was the brain

39

child of the “child saving” movemenf’. Though some children were simply “placed out” in
the countryside away from the corrupt influences of the city (Platt, p.65), others were taken
to neighboring states and even to the West. Some estimates indicate that by 1879, as many
as 48,000 children had been “placed out” of New York alone to homes in other parts of the
country (Fox: 1210). Additionally, Robert Mennel (1973) notes that

apprenticeship usually meant placing children with farmers away from

their former companions and thickly spread snares of the city. More often

than not, these farms were located in the East- in Pennsylvania, New Jersey,

upstate New Yorlc Cape Cod, or Connecticut. Older boys were sometimes

indentured to ship captains in the whaling or merchant service on condition

that their voyages last at least two years. (p.21)

It has been noted that one of the tests of the “child saving” movement was its ability
to transform children though the system of apprenticeships (placing out) which it had sought
to perfect. If this is true then, the “child saving” movement failed this test. Evidence
suggests that the children often did not get the skills and training which they had been
promised Furthermore, many of the children were abused by those to whom they were
apprenticed Alexander Pisciotta (1982), in a study of the apprenticeship system of the New

York House of Refuge, found that

 

In Michigan, for example, a system of laws were put into place wherein children could be
contracted out. However, this system for “bonding out” children was tightly controlled. One such
provision indicated that

if it shall come to the knowledge of such agent that any child thus placed in
chargeofanypersonasaforeeaid, isneglectedabused, orimproperlytreated

by the person having such child in charge, or that the person holding the child

in unfit to have the care thereof, he shall report the fact to the board or officers
of the institution by which such child was indentured, and such board or officers
shallcancelthecontractandeausethechildtobereturnedtotheinstitutionfi'om
whenceheorshewastaken, orindenturedto someotherpersons, ortobe
discharged, in the discretion of the board or officers. (Michigan Public Acts,
No.17], 1373; also see M.C.L.A., ch. 64 §2014, 1915)

40

72 percent of the inmates either ran away, voluntarily returned to the Refuge

because they were not pleased with their placement, were returned to the

Refuge by their master, or committed an offense and were incarcerated in

another institution. (p.422)

In sum, the apprenticeship system failed because there was a lack of accountability on the
part of some unscrupulous masters and intractable children. The “child savers” assumed that
all the “masters” would have the best interests of the child in mind when that is clearly not
the case as evidenced by the fact that some complained‘about and wanted to return children
simply because of the amount of food that they consumed (Pisciotta2421). In addition, the
“child savers” assumed that a mere change of environment would cure all that was wrong
with the child Clearly, many of the children Ind problems that went well beyond where they
lived.

Though the “child saving” movement exacerbated some of the problems that it had
attempted to solve- breaking up families to save them; denigrating poor children yet
abhorring the practice of labeling them- , its work culminated in what was deemed the
greatest achievement of the Progressive Era. This achievement was the creation of the
juvenile court. The juvenile court expanded upon the ideals that were originally put forth by
the House of Refuge, that children should have a place or venue where they were protected
from the harsh realities of the world. Here, it was thought that children would get the “care
and solicitude” which they could get nowhere else. Here, children would be ascribed a status
analogous to that of a patient wherein their problems could be diagnosed and treated. It was

also here that the state was deemed the penultimate arbiter of what was best for the child.

The juvenile court was founded in 1899 in Cook County, Illinois. This court was

41

based upon the premise that children were different from adults and they should be treated
as such. The juvenile court also had as a premise the assumption that age mitigates
culpability is so far as a child’s ability to distinguish right from wrong (see Bearrows,
Bleich, and Oshima, 1987265). These ideas coincided with five principles elucidated by
Julian Mack (1910) which he suggests are inherent within the fabric of the juvenile court-

The first is that the child offender ought to be kept separate from the adult
criminal, and should receive at the hands of the law a treatment differentiated
to suit his special needs; that the courts should be agencies for the rescue as
well as the punishment of children...

The second principle... is that the parent of the child offender must be made
to feel more responsible for the wrong doing of the child...

The third principle... is that the commitment of children in common gaols,

no matter what the offense may be that is committed, is an unsuitable penalty
to impose...

The fourth principle, that taking a child away from its parents and sending

it even to an industrial school is, as far as possible, to be avoided; and as the
fifth and most important principle, that when it is allowed to return home, it
must be under probation, subject to the guidance and friendly interest of the
probation officer, the representative of the court. (p. 1 15-1 16)

These principles, for better or worse, gave guidance and credibility to the juvenile
court for more than eight decades. However, there are some who would suggest that the
intent behind the juvenile court has always been far from benevolent. For example, there are
commentators such as Fox (1970a), Mennel (1973), and Platt (1977) who suggest that the
introduction of the juvenile court was merely a veiled attempt to expand social control over
the poor and disaffected youth form the cities. Mennel writes that

juvenile courts, even those with a panoply of supporting staff and institutions,

provided new bottles for old wine- ways of supervising delinquent children

which, while not formally incarcerating them, provided penal sanctions for

persistent wrongdoers. The charismatic approach of some early judges and

the sheer amount of organizational and promotional activity associated with
the creation of a seemingly novel tribunal obscured for a long while the

42

juvenile court’s traditional attitude toward delinquent children and their
parents. (p.144)

Further evidence of this fact is provided by Anthony Platt who suggested that the
juvenile court found a legal and socially acceptable way to criminalize and bring within its
ambit of go- vernance behaviors that traditionally had been ignored or handled informally
(19772139; also see J. L. Schultz, 19732193). Even more, the behaviors target- ed once again
characterized activities which were most frequently engaged in by the poor (Fox, 1970a).

In all fairness, there are some who believe that Platt, and others of the same mindset,
exaggerate or misstate the case against the juvenile court. J. Lawrence Schultz (1973)
suggests that Platt (1977), Fox (1970a), and others are engaging in revisionist history and do
not provide corroborating evidence to substantiate their claims (also see Salemo, 1991).
First, Schultz takes issue with the assertion that the juvenile court movement was an exercise
in the retrenchment of middle class values. He suggests that some people and communities
within the cities would have welcomed increased social control if it meant that lawlessness
and other problems could be contained (p.471-472; also see Salerno, 1991). While this may
be true, Schultz himself does not present any evidence to support this claim. He does not
demonstrate that those poor communities in the large cities welcomed this encroachment
of the state yet, he finds fault with Platt and others for this very same reason. There is no
evidence to suggest that this increased social control was carried out in an evenhanded
fashion so that the poor would not be selectively targeted by the new laws. There is also no
evidence to suggest that these communities embraced these new laws. If anything, the

juvenile court made the poor more vulnerable before the state, especially in view of the fact

43

that there is no proof that children from the middle class were brought into juvenile court
in numbers equal to that of the poor“.

Second, Schultz takes issue with the assertion that the juvenile court was nothing
new. He notes that commentators such as Fox (1970a) and Platt (1977) both accepted the
fact that the antecedents of the juvenile court could be gleaned from the precedents
established in other states. By his interpretation, social reformers did not claim that they
were responsible for establishing these new precedents (p.461). Instead, they were
responsible for pulling together these separate precedents within a single doctrine to ensure
tint children were treated differently than adults. In that regard, social reformers could claim
a degree of originality (19732462).

Just as there have been differences with regard to the intent and purpose of the
juvenile reform movement, there has been an ongoing debate about the significance of the
treatment orientation of the juvenile court. Though one of the professed goals of the juvenile
court was to “treat” the child, short shrift is typically given to this issue. From the earliest
inception of the juvenile court, its supporters believed that “the court would serve as a place
where psychologists, psychiatrists, and other specialists concerned with the diagnosis of
youth problems both helped children and trained parents and teachers to understand the
complex mture of juvenile delinquency” (Menne12156). Over time, this view has evolved

to one where it is believed that some children are not amenable to treatment and, by

 

Salerno (1991), on the other hand, takes the view that the juvenile court was created as a
protective mechanism for capitalism (p.42). Moreover, he suggests that the creation of the juvenile
cutawasfiiebestavaflableremedytotheperceivemereasedinjuvenflecnme. Still,hesuggests
that there simply was no evidence to support the contention that the juvenile court, or the Child
Saving Movement, was a conspiracy aimed at controlling the dangerous classes (p.43).

44

extension, that they are not entitled to treatment. This view takes a harsher, more punitive
stance toward children and further clouds the issue concerning the role of the juvenile court.
According to Francis Allen (1964), this merely reflects the ongoing tension between the
desire for retribution, a vestige of the period before child saving began, and the willingness
of the community to become fiilly supportive of the rehabilitation of its youth (p.50). With
this in mind, there are three questions for which answers must be provided. First, what is the
role of the juvenile court relative to the rehabilitative ideal? Second, are juveniles entitled
to treatment and rehabilitation? Alternatively, on what grounds are juvenile entitled to
treatment and rehabilitation? Third, what have been the consequences of the treatment
orientation for the juvenile court? Answers to these questions should provide insight into the
assertion that the desire for retribution has never been ameliorated even though some have

professed allegiance to the non-punitive nature of the juvenile court.

The Juvenile Court and the Right to Treatment

The role of the juvenile court is best captured within the context of providing care,
guidance, and nurturance to children Some commentators have suggested that the express
purpose of the court is to “arrest” a child’s misbehavior by proffering treatment so that his
or her problems will not be later manifested in criminality. This task can only be
accomplished by gaining a thorough understanding of what drives and motivates the child.
Julian Mack (1910) voices similar sentiments by suggesting that the whole child must be
understood if a solution is to be found for what ails him or her. He writes that

a thorough investigation, usually made by a probation officer, will give the

45

court much information bearing on the hereditary and environment of the

child This, of course, will be supplemented in every possible way, but this

alone is not enough. The physical and mental condition of the child must

be known, for the relation between the physical defects and criminality is

very close. It is, therefore, of the utmost importance that there be attached

to the court, as has been done in a few cities, a child study department,

where every child, before hearing, shall be subjected to a thorough psycho-

physical examination. (p. 120)

It is very important to note at this point that the juvenile court was believed to be the only
place where the child could get care and treatment. This is not to suggest that the juvenile
court Ind the capacity to provide treatment to all children but, it does suggest that one of the
pillars of the juvenile court is treatment (also see Allen251).

This belief unabashedly begs the question of whether treatment is an inherent right
of children. There are both advocates and detractors who take opposing sides to this issue.
Some do suggest that children do have a right to treatment, a right which was made explicit
in the Gault decision (see Ellis, 1976; Blasko, 1985). At the same time, there are those who
believe that the right to treatment was a tradeoff for the lack of procedural guarantees
afforded to children (see McNulty and White, 1976; Heugle, 1980; Blasko, 1985). Beyond
this, there are those who suggest that there is no absolute right to treatment. For them,
treatment is an antiquated notion bearing little relevance to the behavior of the child As
such, children only have the right to be treated as a person but nothing more (see Fox, 1974;
Monarski, 1987; Gardner, 1989). Such a notion suggests that children are miniature adults
who deserve no more, and no less, than the protections and services that are given to adults.

With regard to the position taken by Ellis (1976) and Blasko (1985), it is believed

that therapeutic treatment can best be obtained through the informal process of the juvenile

46

court Those who subscribe to this view are “traditionalists” in that they believe

the prevention function of the juvenile court is ftmdamental and that

therefore undesirable behavior should be dealt with by the juvenile

correctional system, even though no specific offense has been committed,

in order to ‘impress’ the child with the consequences of aberrant

behavior. (Ellis2720)
Here, it is made explicit that the court should have broad discretion in terms of exerting
social control over children. This view also coincides with the objectives of the “child
savers” who sought to rein in behaviors which, technically, were not illegal or criminal but
posed more of a nuisance to the community. Similarly, Blasko ( 1985) makes the observation
that states have a compelling interest in rehabilitating and reintegrating children back into
society. Under the doctrine of parens patriae, rehabilitation must be paramount in so far as
serving the best interests of the child. “In order to promote the child’s welfare, the only other
alternative [is] institutionalization focused on reforming and rehabilitating the juvenile to
conform to societal norms and facilitate the restoration into society.” (p. 128-129)

The second issue regarding the right to treatment presupposes that a quid pro quo
exists in the juvenile justice system. Of significance here is the belief that treatment, as a
goal, was a concession granted to “traditionalists” in return for lesser procedural protection
for children (see Heugle, 19802364; Blasko, 19852130). A very strong case for this position
is made by Huegle (1980) who writes that

procedural due process, as a source of the right to treatment for the non-

criminality committed, demands that, for a person confined pursuant to a

proceeding that did not possess all the procedural guarantees of a criminal

prosecution, the only tradeoff for the lack of procedural safeguards is treat-

ment Substantive due process demands that even if full procedural rights

have been accorded, treatment remains the only justification for the depriva-
tion of the liberty of a person not convicted of a crime. (p.364)

 

47
This position suggests that even though juvenile court proceedings are supposedly civil in
nature, the only rationale for depriving children of their liberty for the purposes of
confinement is treatment Confinement for the purpose of retribution and punishment
cannot then be justified in view that these motives are secondary considerations. The only
compelling interest that the state has in children within the civil arena of the juvenile court
is to ensure the provision of proper treatment.

McNulty and White (1976) also acknowledges the quid pro quo argument, however,
they contend that it poses problems for the juvenile court. First, they suggest that this
argument presupposes that all children are receptive to treatment. The issue turns on what
to do with children who can’t be treated within the scope of the juvenile justice system
(p.763). Second, they suggest that this argument diminishes the possibility that treatment and
punishment can effect change in juveniles. McNulty and White indicate that

state intervention in most cases of criminality by minors is based more

on society’s needs for protection than the minor’s need for treatment. The

juvenile court in delinquency cases, while it has a rehabilitative focus, is

nonetheless serving societal ends similar to those served by the criminal

court: condemnation, deterrence, and incapacitation of those whose behavior

is threatening to society. Ifwe decline to acknowledge this function of the

juvenile comt, then those offenders whose problems are beyond the capability

of the behavioral scientists to diagnose or treat would be entitled to release

from institutions lacking programs to meet their treatment needs. (p.764)

Ifone follows their logic to its conclusion then, it could be demonstrated that treatment and
punishment are not antithetical because both serve to isolate and correct wayward youth.

The third issue related to treatment is premised upon the assumption that the j uvenile

court’s mandate for rehabilitation is no longer valid. Various authors point out the fact that

disenchantment with the rehabilitative ideal is so pervasive that there is a movement toward

48

greater ptmitiveness rather than compassion and care. This disenchantment is manifested in
the belief that juveniles have no absolute right to treatment but rather that they have only a
right to punishment Michael Gardner (1989) characterizes this disenchantment as the “new
juvenile justice.” He writes that

the new juvenile justice reflects a general disillusionment with the ability

of the juvenile justice system to live up to its traditional rehabilitative

promise. because punishment is justified only if its recipient is a ‘person’

capable of moral agency, the movement toward a punitive model seriously

questions the existing view that juveniles lack capacity for rational decision

making. (p. 195)

Gardner’s main contention is that there is a movement away from thinking about
juveniles only in terms of children needing treatment. Instead, there are other issues which
must ascend the hierarchy of importance within the juvenile court, namely accountability
for one’s actions. F ranciszka Monarski (1987) supports these sentiments by suggesting that
society no longer has faith in the juvenile court’s ability to treat and rehabilitate children.
Society’s frustration with the juvenile court has resulted in the advocacy for more
punishment She writes that

the public has lost confidence in the ability of the juvenile system to

effectively control delinquency and deal with the problems confronting

children today. Concluding that traditional goals of rehabilitation fails to

protect the public adequately, many critics advocate a new system that

focuses on punishment and incarceration. (pl 116)

It seems that the juvenile court has come full circle. There was a period in our history
dining which time children were treated as if they were miniature adults. The Progressive
Movement sought to change this highly punitive orientation, yet it placed a great deal of

control in the hands of one agency, the juvenile court During the reign of the juvenile court,

49

segments of society called for care, compassion, and treatment of children so that they
would not grow up to become future problems. This was indeed a break from the past.
Advocates of the juvenile court such as Julian Mack, Jane Adams, and Julia Lathrop called
upon social service agencies to work in cooperation with the court to ensure that children
received the treatment that they needed. Presently, however, we have once again retreated
to the past for solutions. Though our society never truly gave treatment agencies the
resources that they needed to be effective and efficient, we were quick to pass judgment by
suggesting that treatment was not working and that new solutions must be found for the
problem of delinquency. These new solutions in fact have merely been an embracing of the
punitive ideas of old.

Of paramount importance are those factors which prompted the pendulum swing
back to ptmishment. It is already known that there was the widespread perception that
treatment was not working. Added to this was the problem of what to do with children who
simply were not responding to treatment These things in themselves are only partial
explanations. Two other factors must be taken into account- 1) the perception that crimes
committed by children were on the rise and getting more serious and 2) the changing
political winds of the country.

There are numerous reports and statistics which suggest that the problem of juvenile
crime is getting worse. What’s more, these same reports and statistics suggest that violence
among children is skyrocketing. Information obtained from mm 52931951 1988)
indicates that the aggregate level of violent index offenses committed by juveniles increased

13 percent between 1984 and 1988 (p.65 ). During this same period, murder increased almost

50

42 percent while aggravated assault increased 39 percent (p.65 ). It is statistics such as these
which fed the disquiet experienced by society (also see Guarino-Ghezzi, 1996; Hamparian,
1987). However, there are some who would suggest that these perceptions of increased
violence are not supported by the facts. Michael Jones and Barry Krisberg (1994) indicate
that

the ten year trend in arrests for violent crimes, however, does not suggest that

youth violence is any more out of control than it was a decade ago. Juvenile

arrests or violence increased by 45 percent between 1982 and 1992, but this
increase was characteristic of violent crime arrests in general (adult arrests

increased by 41 percent during the same period). (p. 10)

These two very different interpretations of the data only add to the confusion about
the level of juvenile crime. Should we not be concerned with juvenile crime because it is no
worse than the rate for adults? Jones and Krisberg (1994) seem to suggest that our sense of
fear is actually misdirected. They also suggest that certain organizations have an interest in
sustaining a heightened level of fear within the public. For example, they cite police
reporting practices which inflate arrest and victimization trends (p. 13). The question still
remains, though, to what end does the increased perception of violence among juveniles

serve. An easy answer would lie in shifting the emphasis in juvenile court from treatment

to punishment.

Conservative Philosophy and Classical Criminology
It has previously been stated that there has always been an uneasy tension between
retribution and rehabilitation within the juvenile court (Allen, 1964). Perceptions of

increased seriousness and violence among youthfiil offenders have placed the juvenile court

51

under increased strain. Presently, there are calls to make juveniles more accountable, to
criminalize the juvenile court, or do away with the juvenile court altogether (see Wizner and
Keller, 1977; Feld, 1984(b); Feld, 1988(a); Gardner, 1989; Dawson, 1990; Federle, 1990;
Guarino-Ghezzi and Loughran, 1996). Commentators on the juvenile court, such as Polier
(1989), suggest tlmt the juvenile court, in its original mission, was called upon to perform
an impossible task- to do away with delinquency and violence. When it became clear that
this task could not be accomplished, the public withdrew its support from the court and
demanded that it act as a vessel for its outrage (also see Feinberg, 1970). Polier notes that

incapacitation was the demand of fearful communities. Judges with reduced

discretion to evaluate individual youths were expected to act only on the

delinquent acts. This distanced them from youth in one more way. The judges

became instruments for the imposition of community vengeance. (1989228)

It was this change in community sentiment that ushered in the new age of conservative
philosophy relative to the juvenile court. This philosophy identifies responsibility and
accountability as paramount concerns.

Whether called a “get tough strategy,” “crime control model,” or “just deserts
model,” the conservative philosophy of juvenile justice holds that juveniles must be made
to understand that there are consequences, serious consequences, for reckless and dangerous
behaviors (also see Katkin, Kramer, and Hyman, 1976). As such, stiff penalties are seen as
a reasonable avenue for effecting the desired change from antisocial behaviors in juveniles.
In view that traditional means within the juvenile comt have failed to link behavior with

consequences, the adult system of punishment is held up as a panacea for society’s

problems.

52

Several authors have commented on what this conservative philosophy means for
juvenile justice. Justine Polier (1989), for example, notes that the conservative philosophy
placates the hew and cry for greater protection of the community (p.30). That is, there is the
desire to remove from the community for lengthy periods of time juveniles who pose a threat
to the safety of others. At the same time, this view expresses a harsh indifference to youth
and the fact that they are developmentally different from adults (also see F ederle, 1990).
There is a strict adherence to the belief that if one commits an adult crime then, he or she
should get adult time. Proceeding along a similar line of thought, Susan Guarino-Ghezzi and
Edward Loughran (1996) indicate that

the adult system was turned to as an answer to satisfy stake holders and

also to demonstrate rationally escalating consequences to juveniles’ offense

behavior. These goals would be accomplished by adult courts sending a

presumably stronger and more predictable message to offenders, and thereby

restoring a sense of justice for other interested parties. (p.16)

The conservative philosophy of juvenile justice has but one goal, punishment of
offenders. Notions of treatment are only coincidental to this end Much faith is placed in the
adult system of punishment to effect changes in juveniles and ensure the safety of
communities. This view is held in spite of the fact that the adult system itself is beset with
problems. The method of choice that is in current vogue with those holding a conservative
view of justice is waiver. Before proceeding with a discussion of waiver, it is important to
point out that the conservative philosophy has roots in the classical school of criminology
and, by extension, to a “just deserts” philosophy.

The classical school of criminology is built upon the pillars of punishment and

II-

53

retribution Adherents to this school believe in the free will of the individual. Further, they
believe that individuals choose to pursue a certain course of action designed to maximize
their pleasure. Problems arise when one’s actions imbalance the scales of equity so that one
unfairly benefits from the suffering or penalization of others. As such, corrective actions
must be taken to restore a sense of balance. This is the position taken by Jeremy Bentham,
one of the founders of the classical school. Bentham noted that punishment is needed in so
far as it sends the message that offenses, or injustices, perpetrated against others will not be
tolerated and that further offenses will be appropriately sanctioned (see F einberg and Gross,
19802548; also see Fletcher, 1982; Wertheimer, 1983; Davis, 1985). Thus, punishment is
used to exact retribution for those “injured” by an offense. It also serves as a deterrent to
others. Bentham goes on to lay out a general fiamework within which punishment is to be
carried out. The rules which he explicated were designed to structure punishment so that
individuals would not be penalized beyond what was deemed reasonable. His rules included
the following:

Rule 1... the value of the punishment must not be less in any case than what
is sufficient to outweigh that of the profit of the offense...

Rule 2... the greater the mischief of the offense, the greater is the expense,
which it may be worth while to be at, in the way of punishment...

Rule 5... the punishment ought in no case to be more than what is necessary
to bring into conformity with the rules here given...

Rule 6... that the quantity actually inflicted on each individual offender may
correspond to the quantity intended for similar offenders in general...

Rule 7... to enable the value of the punishment to outweigh that of the
offense, it must be increased, in point of magnitude, in proportion as it

falls short in point of certainty...

Rule 9... where the act is conclusively indicative of a habit, such an increase
must be given to the punishment as may enable it to outweigh the profit not
only of the individual offence, but of such other like offences as are likely
to have been committed with impunity by the same offender... (1980:548-550)

54

These rules, as simple as they may appear, have been a guiding force not only in
adult corrections but in juvenile justice as well. The major point of focus of these rules,
given the classical stance, is the offense. One is concerned only with the fact that another
person has been harmed. Hugo Adam Bedau (1975) conveys this very same point by
suggesting that the classical or retributivist view uses the objective criterion of offense to
determine the appropriate steps to take when dispensing punishment (p.53).

It is important to note that two of the rules elucidated by Bentham (Rule 5 and Rule
6) give rise to the notion of “just deserts.” Deserts rests on the notion of deservedness. In
other words, “just deserts” assumes that one deserves the reprobation of society for some
wrong that has been perpetrated upon another. This desire to assess blame, though, must
lave limits. Andrew von Hirsch (1976), one of the leading proponents of deserts theory
suggests that the assessment of blame must be proportional to the gravity of the offense
(p.66; also see von Hirsch, 1985; Davis, 1985).

Andrew von Hirsch (1976) suggests that three requirements must be observed if
deserts is to serve its ends-

1) sanctions disproportionate to the wrong are seen as manifestly unfair...

[(2) the principle ensures the rights of the person punished not be unduly

sacrificed for the good of others, [and (3)] the principle ensures that

offenders are not treated more (or less) blameworthy than is warranted by the

character of the offense. (p.69-71)
The first requirement has relevance for the notion of arbitrariness or “kadi-justice” (see
Matza, 1964). That is, the use of extra-legal factors to determine waiver dispositions

exacerbates the sense of injustice that may be experienced by juvenile offenders because of

the uncertainty inherent within such discretionary decisions. The third requirement also has

55

significance for the waiver process in that emphasis shifts to the offense rather than the
offender. Of importance here is what the offender did and not who he or she is or needs.
Thus, subjectivity is removed from the decision making process.

Andrew von Hirsch (1976) extends the retributivist argument that the offense should
be the focus when deciding the issue of punishment. While a strict retributivist position
would suggest that any offense is justification for punishment, a derivation of lex talonis,
von Hirsch questions the utility of taking such a narrow view. He suggests that certain
criteria must be considered before one can accurately affix punishment. Thus, he puts forth
the notions of harm and culpability (p.79; also see von Hirsch,1985). He notes that the
harrnfulness of an offense should be used as a criteria because it allows one to gauge
offenses along a continuum of seriousness. For him, only those actions that pose grave harm
to others are of any consequence (p. 79; also see Burgh, 1987). Similarly, he believes that an
offender’s culpability should be considered before assessing punishment Culpability as he
defines it, takes into account three things: 1) the degree to which one should be blamed for
his or her actions, 2) the degree to which one’s actions set events into motion which caused
the harm, and 3) the role of the offender in terms of whether he or she had a major or minor
role in precipitating an act (p. 80). Thus, von Hirsch believes that there are mitigating factors
which should be considered before administering punishment (also see Burgh, 1987)? This

position is very different from that of the strict retributivist position wherein factors outside

 

One such mitigating factor that merits some discussion is age. Barry Feld (1995), for example, has
repeatedly suggested that age (or youthfulness) should be a part of the equation when assessing
responsibility and punishment. Such a consideration would necessitate a “youth discount” which
would take the form of shorter sentences (p.1127; also see Streib, 19952777; Feld, 1997).

56

of the offense itself are believed to be unimportant (also see Matza, 1964; Feld, 1988).

The notion of culpability does present problems for the issue of waiver even though
von Hirsch (1976) notes that culpability rests upon "... the degree to which [the offender]
may justly be held to blame for the consequences or risks of his act. " (p.86) Since waiver is
the most extreme disposition available to juvenile court judges, there seems to be some
underlying assumption on the part of judges and prosecutors that juveniles possess the
requisite mens rea and mental maturity or sophistication to warrant such a harsh disposition.
There does not seem to be any recognition of the fact that maturity varies across adolescence
and adulthood (see Scott and Grisso, 1997). As such, varying degrees of mental maturity
would necessitate that the tenets of culpability be violated (see also von Hirsch, 1985).

It is the “just deserts” model upon which the conservative position and new juvenile
court are built. The new juvenile court believes that offenders can be held accountable for
their crimes by treating them like adults. Incidentally, a similar position is taken by Michael
Gardner (1989) who suggests that children should be viewed as persons with moral agency.
This notion of conferring upon pseudo-adulthood upon children is akin to waiving them to
adult court.

There does not appear to be any evidence to suggest that our current fondness of the
conservative philosophy is going to change. Though it is apparent, based on the available
evidence, that this philosophy is not working, there is a great deal of hostility aimed at those
who would seek other alternatives. Our society is not yet ready to admit that it was wrong
about waiver, specifically, and the conservative philosophy, in general. Because we are

hesitant to change, our policies toward youths are stagnating. We are reverting back to old

57

practices where childhood and adulthood were virtually synonymous. In a manner of
speaking, our philosophy of youth is devolving rather than evolving.

The same trend is also apparent in the theories which are used to explain juvenile
delinquency. Though there has been an evolution from the classical tradition, to positivism,
and then to sociological theories, it seems that theories of youth and delinquency have
remained unchanged over the past 30 years. There is a perception that all that can possibly
be said about juvenile delinquency has already been stated There are no new paradigms in
delinquency theory. In the remaining pages, a critique will be presented of an existing
theory, “Principle of Offense,” and it significance for how the justice system looks at

juvenile offenders and dispenses a “recycled” brand justice and punishment for them.

The Juvenile Court, Theory and Waiver

The "Principle of Offense", in actuality, has roots in the work of David Matza (1964)
who indicates that this principle is merely one of equality. This principle is a reaction against
individualized justice which Matza likens to "kadi-j ustice". He writes that

the principle of individualized justice suggests that disposition is to be

guided by full understanding of the client’s personal and social character and

by his 'individual needs.’ This view is well captured by the slogan which

suggests that nowadays the treatment fits the individual whereas in the olden

times the punishment fit the crime. (p.114-115)
One gets the sense from Matza that the "principle of individualized justice" connotes a lack

of accountability. Not only are juvenile offenders not held responsible for their offenses but,

the juvenile justice system also lacks accountability in that its dispositions lack substantive

merit and tend to be based on criteria irrelevant to the offense“). As such, the juvenile court
engages in “mystification” in that one does not know how the disposition was arrived at and

must engage in a guessing game as to the significance of the decision Matza notes that the

judgment but objective fact. This principle restrains discretion and provides clear guidelines
for rendering decisions. In a sense, the juvenile court is removed from the equation so that
the disposition stands or falls on its own merits. He also indicates that the public demand for

severity can more easily be met through such a principle. Matza writes that the “Principle

58

principle of individualized treatment is a mystification...To the extent that it
prevails, its function is to obscure the process of decision and disposition
rather than to enlighten it. The principle of individualized justice results in
a frame of relevance that is so large, so all-inclusive, that any relation
between the criteria of j udgrnent and the disposition remains obscure. (p. 1 15 )

Matza goes on to say that the "Principle of Offense" does not rest upon subjective

of Offense”

is importantly qualified by doctrines that allude to, but routinize, the
sentiments of individualized justice and treatment. This means that whether
a juvenile goes to some manner of prison or is put on some manner of
probation— the alternative sentences from which the kadi mainly chooses-
depends first, on a traditional rule-of-thumb assessment of the total risk of
danger and thus scandal evident in the juvenile’s current offense and prior
record of offenses; this initial reckoning is then importantly qualified by an
assessment of the potentialities of ‘out-patient supervision’ and the guarantee
against scandal inherent in the willingness and ability of parents or
surrogates to supervise the child. (p. 125)

 

Ralph A Rossum (1996), for example, notes that when focus is on treating the juvenile offender
rather than the offense, two very important principles are violated- equality and proportionality

(p.838). Moreover, he suggests that
a juvenile justice system that is so committed to curing juveniles of their disease of
delinquency that it will act unjustly by denying them the principle of equality,
proportionality, and commensurate deserts has become T.S. Lewis’ “man-eating
weed,” all the more dangerous because it still denies “justice” in its name. (p.838)

59

This first issue is one of dangerousness or protection of community, a cornerstone
of the waiver decision as intimated by the Kent v. United States (383 US. 541, 1966)
decision A balance must be struck between the potential risk to the community and
resulting scandal relative to giving the juvenile a lesser disposition. The "Principle of
Offense" would suggest that waiver should be chosen when these risks are high both in terms
of future crimes and public outcry.

Matza next elaborates upon a second component to the "Principle of Offense"
wherein treatment potential and availability are considerations. The paramount issue facing
the court should be whether treatment programs exist which can assist in the rehabilitation
of the youth. In addition, the court must consider the likelihood that the youth would benefit
fi'om such a treatment program. He writes that

the judge may be able to sort juveniles into those who are better or worse, or,

as he may put it, those who require more or less help, but it is difficult for

him to know the precise or even reasonable dividing line between those who

are to receive probation and those who will go to prison. Thus, the dividing

line may vacillate somewhat depending on residential availability. (p. 126)

This issue is one of amenability to treatment, the other cornerstone of the Kent v.
United States decision. As stated earlier, juvenile court judges must make their waiver
dispositions based on what they believe are available programs. However, an issue was
raised as to how much knowledge these judges have of treatment programs and strategies.
What is the actual extent of their knowledge about programs in the community, both public

and private? Do they actually survey these programs to find out which are available to the

youths facing waiver? If not, then these judges are again making subjective decisions about

60
treatment potential and thus may waive more juveniles than is really necessary.

David Matza (1964) provides a viable explanation as to why one’s beliefs in the law
and the conventional order may be weakened or broken. His explanation is premised upon
the assumption that one experiences a sense of injustice and antagonism toward the
conventional order because its agents continually pervert the spirit and intent of the law. He
writes that

the moral bind of the law is loosened whenever a sense of injustice prevails.

Law, whatever its guiding principle binds member to society to the extent

that it maintains a semblance of even handed administration. Guiding

principles may vary but, whatever their substance, persistent violation of

their spirit occurs at the peril of alienating the subjects of law and order.

A legal system based on trial by ordeal is tenable, but one in which the in-

ternal logic of that system is regularly violated would to that extent lose the

loyalty of its subjects. The legitimacy granted to law would be withdrawn

(p. 102)

The point of the aforementioned passage is that one cannot believe in the existing system
of laws if those laws themselves are arbitrary. Put another way, both judges and prosecutors
have ulterior motives when it comes to juvenile offenders. Though some judges profess to
base their decisions on a notion of individualized justice, they may still corrupt the spirit of
the law by allowing personal prejudices and attitudes to become intertwined with legal fact.
As such, dissimilar punishments are often to meted out to juveniles who have committed the
same crimes and also have similar offense histories. Thus, the law is not applied in an
evenhanded fashion.

Matza’s notions of justice are built upon five components- 1) cognizance, which

refers to awareness of one’s actions and state of mind; 2) consistency, which refers to like

treatment for like actions [or equity and evenhandedness]; 3) competence, which refers to

61

the capacity to render judgment; 4) commensurability, which refers to the relationship
between the offense and the punishment; and 5) comparison, which refers to the evaluation
of one’s status and demands placed upon him relative to others who are similarly situated
(Matza, 1964).

The notion of consistency is important for its relevance to the waiver of j uveniles.
Some of the research literature demonstrates that waiver, a tool of conservative philosophy,
is not working as planned. The reason can partly be linked to the arbitrary, and sometimes
irrational, standards that are used to make waiver decisions. Various criteria such as
amenability to treatment or protection of the community are used to justify waiver decisions,
but in themselves, they do not constitute a uniform policy for making decisions of such
magnitude. In addition, waiver is not “consistently” applied to all juvenile offenders who
commit similar offenses but is in fact a product of discretion by both judges and prosecutors
(see Rossum, 19962839).

In a manner of speaking, justice officials tend to tailor or individualize their
dispositions to coincide with the needs of the individual and their perceptions of j ustice. It
is this concept of individualized justice that breeds contempt and cynicism. Matza notes that

the principle of individualized justice is more inclusive than the principle

of offense. it contains more criteria in its framework of relevance. Spokes-

men for individualized justice do not suggest that offense is irrelevant;

rather, that it is one of many considerations that are to be used in arriving

at sound disposition... The principle of individualized justice suggests

that disposition is to be guided by a firll understanding of the client’s

personal and social character and by his ‘individual needs.’ (p. 1 14-1 15)

Fairness is also an issue. Offenders within the juvenile system do become aware of the fact

that some among them are “less equal than others.” That is, there are some juvenile

62

offenders who, though they have committed similar offenses, will receive punishments
which are vastly different. On the basis of this inconsistency, one cannot place too much
faith in the system of laws or those who act as agents of the law (see Brooks, 19952894).
Cognizance, another concept utilized by Matza, has relevance because it gets at the
issue of amenability. In other words, prosecutors and judges use a juvenile offender’s
cognizance of his/her actions as a measuring rod for whether the offender can be helped or
treated within the juvenile justice system. Cognizance assumes a degree of both culpability
and responsibility. Though it is assumed that juvenile offenders are less responsible for their
actions, for reasons of mental maturity, they still are capable of forming intent (see Zimring,
1982; also see Fox, 1970(b); Gardner, 1989) and, thus, must be held responsible. At the same
time, cognizance gets at the issue of whether a juvenile offender is remorsefirl and associates
his/her actions with the harm inflicted upon others. Such recognition may signal to
prosecutors and judges that the juvenile is not “hardened” and still malleable in terms of
personality development. In other words, the character offender is called into question and
whether he/she is still salvageable.
The idea of comparison has implications for what can be termed the “going rate.”
That is, what do juvenile offenders who are waived get in terms of punishment relative to
others Who are similarly situated. It is suggested by the literature that comparisons of the
“going rate” among waived offenders is disparate and unjust. For example, Elizabeth Clarke
(1996) has found that waiver disproportionately disadvantages minority offenders and also
targets offenders who commit crimes of lesser seriousness (also see, Gillepsie and Norman,

1984; Wizner, 1984; Fagan and Deschenes, 1987).

63

Theoretical Implications

The more important point about Matza’s theory is that it provides the justification
for the use of waiver. Waiver, in their various forms, aim to heighten the relevance of
commensurability and consistency of punishment for crimes. Though one may disagree with
their usage, waiver is not simply a “sword” brandished by judges and prosecutors to keep
juvenile offenders in line. As opposed to being arbitrary and discretionary, it would seem
that waiver arose as a means to inject a sense of stability within the juvenile justice system.
Thus, one objective of this proposed study is to examine the impact of Matza’s concept of
the “Principle of Offense” as a criterion for waiver. This theory guides the aforementioned
part of the proposed study given the alleged importance of seriousness of offense as a factor

in juvenile justice decision making.

Chapter 3

Review of the Research

R n "1 Pro uo'lWivr

Introduction:

As has been recounted in the previous chapter, waiver has its roots in the
conservative notion of justice and the “Principle of Offense.” Though the notions of j ustice
are decades old, there has not been a comparable number of empirical research studies to
investigate waiver. Of those which do exist, a few have gained credibility and prominence
(of, Gillepsie and Norman, 1984; Champion, 1989; and Feld, 1989). Feld’s study, for
example, found that even though waiver was an option available to the court, it was not
extensively used in view that far more offenders with serious juvenile records were retained
in juvenile com't rather than waived to adult criminal court (1989243 ).

Due to the scarcity of empirical studies in this area, one still do not really know
whether waiver actually works. In other words, one does not know whether waiver is
achieving the objective for which it was designed. Currently, there is evidence to suggest
that waiver is not working. Jones and Krisberg ( 1994), for example, state that most of the
juveniles who are waived to criminal court committed property offenses rather than the
more serious violent, person- related offenses (p.4). Even more, the majority of those waived

did not receive longer sentences relative to their counterparts in the juvenile jsutice system

(p.4).

64

65

This clmpter will examine some of the research findings relative to waiver. An
attempt will be made synthesize the relevant findings and offer explanations as to why such
discouraging results have been found by researchers. Last, a critique of some of the studies

will be offered as will be suggestions for overcoming their weaknesses.

Empim’ IRQIitjg of Waiver

Waiver is the process by which juvenile offenders are removed from the jurisdiction
of the juvenile court to face adjudication in the criminal courts. While referred to by various
names such as fitness, transfer, and certification, waiver entails a process by which juvenile
offenders are deemed to be beyond the help of the juvenile court. This view may be
attributable to the heinousness of the crime, the juvenile's offense history, or even public
outcry over the presumed leniency of dispositions given to juvenile offenders. Even more,
it is often presumed to be inappropriate to continually use scarce resources on those
hardened youth who are either unwilling or unable to change their behavior.

Over the past decade, there has been a movement in America whereby serious and
violent juvenile offenders have been removed from the auspices of the juvenile court to the
adult criminal court. This “waiver movement” has been used as a tool to restore
accountability on the part of some judges and responsibility to juveniles. In fact, the
necessity for waiver was built into the original framework of the juvenile court (see Julian
Mack, 1909) based upon the premise that some offenders simply did not belong in the
juvenile justice system. Law and order advocates have seized upon this premise by

suggesting that even the founders of the juvenile court recognized that some juveniles, by

66
their actions, are mature enough to be treated as adults.

Barry Feld (1978), one of the leading authorities in this field, suggests that waiver
is neead to deal with those juveniles who demonstrate a blatant disregard to the
rehabilitative ideal of the juvenile court. Such disregard can be observed

when a youth, by his behavior, experience, or sophistication evinces criminal

maturity and culpability... Moreover, it is argued, in light of their persistent

delinquencies, further efforts to rehabilitate these hardcore offenders could

entail a misallocation of scarce treatment resources vis-a-vis other, more

treatable juvenile offenders. (p.518)

Feld (1978) seems to be evincing a concern for what could be termed career juvenile
offenders who have established records of serious or violent offenses. While such offenders
may evoke little sympathy from some, capitulation to waiver suggests that the juvenile
justice system has given up its battle for the souls of these offenders. They are deemed lost
causes.

F eld ( 197 8) goes on to make two other points relative to waiver. First, he indicates
that waiving certain offenders will diminish their influence over more impressionable
youthful offenders (p.518). This would then suggest that waiver is intended for older
juvenile offenders who may be near the upper limit of juvenile court jurisdiction. Second,
he suggests that waiver allows the public, and politicians, to feel good about themselves by
using a few serious offenders as sacrificial lambs upon the altar of the criminal courts
(p.518). Here, waiver may be seen as a “feel-good measure” which helps to salve the
consciences of politicians and dissipate public anger and hostility by allowing them all to

say that they are doing something about juvenile crime.

67

David Parker (1976) states a position which seemingly confirms the belief that
waiver is an admission of failure on the part of the juvenile justice system. He notes that "the
fitness determination [waiver] constitutes an institutionalized admission of the system's
failure, with the minor often being made to suffer the consequences of inadequate state
provision for rehabilitative resources." (p.992) Parker’s position acknowledges that waiver
is a response to scarce resources which are allocated to the juvenile courts. This contention
hinges upon the assumption that the more troublesome youths are sent to criminal court
because the juvenile justice system is unable to provide them with needed treatment
programs and services. As such, juveniles are denied the right to treatment. He even says as
much in a rather sharp criticism of the juvenile court-

In practice, however, the juvenile courts often merely consider a list of

unsuccessful treatment programs, compiled by the probation authorities

responsible for administering them, without analyzing the extent to which the
inadequacies of the programs themselves are responsible for the minor's
continued delinquency. The juvenile court system's pattern of neglect,
particularly in probationary dispositions, does not warrant immunity from
criticism, and the right to treatment, if it is to be meaningful, compels such

criticism. (p. 1013)

At the same time, Parker makes the argument that “transfers are largely acts of
retribution, the only constructive value of which lies in the protection of society and the
diversion of political pressure from the juvenile court. Its ultimate failure is that it cannot
even assure these ends.” (p.992-993) Of note here is the suggestion that even when
transferred to criminal court, juveniles still do not receive treatment services because the

emphasis in such arenas is punishment. Thus, juveniles are twice denied the “right to

treatment.”

68

Several others have commented upon waiver and its consequences for juvenile
justice. Among these are Charles Polen (1987), F agan and Deschenes (1990), and F orst and
Blomquist (1991). Polen delineates the same view that waiver removes hardcore, yet
"influential,” juvenile offenders fi'om the juvenile justice system in order that precious
resources may be preserved He also notes that certain offenses committed by youths
provoke outrage and fear within the public which can only be calmed by removing the
perpetrators for the streets for extended periods of time. However, Polen seems to possess
a dual philosophy- he is a sentimentalist, or a true believer, as far as the philosophy of the
juvenile court and a realist. This duality is expressed through especially poignant comments
which he makes relative to waiver. First, he notes that

transfer proceedings weaken the juvenile justice system at its roots. The

transfer process admits that the rehabilitation of certain juvenile offenders

cannot be accomplished. Thus, transferring j uveniles to adult court derogates

the view that youth are capable of being rehabilitated no matter what crime

they have committed. (p.502)
In essence, Polen is advancing the position that, by using waiver, juvenile courts are
abrogating their duties to rehabilitate and effect change in wayward youth. Thus, juvenile
courts are beginning to subscribe to the notion that rehabilitation and individualized
treatment are experiments that have not achieved the results that were promised.

Second, Polen can be termed a realist in that he recognizes that certain offenses do
merit severe sanctions which are often unavailable through the juvenile courts. He also
recognizes the fact tint juvenile courts simply cannot help some offenders, whether by virtue

of lack of resources and treatment options or by virtue of "maturity" on the part of the

offenders. He elaborates upon these points in the following passage - ”As long as good

69

rehabilitative programs remain conspicuously absent from those children subject to transfer,
there will have to be some way to maintain an effective jurisdiction over the child to
preserve the interests of justice, if not the juvenile court philosophy or the child" (p.503)
Further, "even though the waiver mechanism may seem like an unsatisfactory way of dealing
with the problem offender, in many cases it is the only common-sense method available.
These offenders have not responded to treatment and adult punishment may be the only
available deterrent for them." (p.503) This would suggest that waiver should be couched in
terms of a necessary evil. Moreover, waiver should be tolerable to the extent that it reaffirms
the notion that certain boundaries are impassable and codes of conduct are unassailable even
for children. Thus, waiver establishes the outer limits of conduct for juveniles beyond which
they must be called into account.

Fagan and Deschenes' (1990) assessment of waiver bears great similarity to that of
Polen (1987), Parker (1976), and Feld (1978) in that there is general agreement that waiver
calls into question the sufficiency of the juvenile court's capacity to deal with certain
offenders. There is even further agreement, for all ostensible purposes, in terms of what
waiver means for the philosophy of the juvenile court. F agan and Deschenes suggest that
waiver invokes notions of punishment and/or retribution, philosophies which are
diametrically opposed to the presumed juvenile court philosophy of benevolence and
treatment The issue for them centers upon whether these seemingly dissimilar philosophies
can be reconciled. In addition, they suggest that the issue of waiver raises the thorny
question of adulthood (19902325). When is a child no longer a child? How can the severity

of an offense reasonably determine mental maturity? These are a few of the unresolved

70

issues which F agan and Deschenes believe are buried under the rhetoric of waiver.

Further corroboration of these positions on waiver can be ascertained from the
writings of F orst and Blomquist (1991). These authors intimate that waiver is couched in
terms of accountability. That is, waiver supposedly serves the purpose of making juvenile
offenders accountable for their behavior and the juvenile justice system more accountable
to the public. This accountability scheme is accomplished in two ways. First, waiver limits
the jurisdiction of the juvenile courts by siphoning off those offenders whose behavior
demands more punitive handling. "By limiting the jurisdiction of the juvenile court to
younger juveniles or those who commit less serious crimes, some proponents of these
measures hope to preserve the treatment and protection functions of the juvenile justice
system." (p.334)

One could suggest that the juvenile justice system seems to be engaging in a futile
exercise for the following reason- the juvenile justice system exacerbates the problem of
scarce resources by "net widening" in terms of those whom its takes in. Though the juvenile
court may shift the serious or hardened juvenile offenders to criminal court, their places
within the juvenile system are soon filled by individuals who may be better served by social
welfare agencies. Such a process could be likened to a recursive sieve where as nuisance
juveniles leave the system, lesser nuisances assume their positions. As such, there is no net
pin in resources. In fact, more energies and resources are expended to accommodate these
lesser nuisance clients.

Second, Forst and Blomquist (1991) suggest that waiver has the effect of changing

or subverting the philosophy of the juvenile court. Demand for such change comes in light

71

of concerns about "... public safety, equal justice, and rationality in decision processes."
(p.335) This would suggest that the desire for a punitive juvenile court goes beyond the
doctrine of parens patriae to one of justice and accountability. Within such a philosophical
shift, the relevance of the offender fades into the background while the offense emerges as
the preeminent factor of consideration. It could be suggested that

predicated on proportionality, an offense-based system of justice permits

greater equality between the sanctions imposed on adults and those imposed

on juvenile adjudicated for the same crime. A justice model presumes to

confront offenders with their wrongdoing, regardless of age, by requiring that

they bear the consequences of their criminal behavior. (p.337)
But in this rush to judgement, one small fact seems to elude the proponents of waiver-
children and adults are not the same. Though one could make the argument that a man killed
by an adult or child is still dead, the degree of maturity and culpability sets them apart.
While in theory, waiver suggests that the offense and offender are separable entities, one
could question the extent to which this assumption holds true. Most children cannot
appreciate the gravity of their actions because of their age. Nor would they truly appreciate
the seriousness of their adjudications (length of sentences) in the same manner as adults and
again this is attributable to their age (see Zimring, 1982). Is waiver really worth the price
which we ask of children?

One other factor pertinent to this discussion, and briefly alluded to earlier, is the
notion of "safety-valve theory”. Safety-valve theory derives from the notion that society
brings ever increasing pressure upon the juvenile justice system to levy harsher penalties

upon juvenile offenders. When the system can no longer withstand this pressure, it opens its

"safety-valve” thereby releasing those who are presumed to be good candidates for quelling

72

or dissipating public anger and hostility much like opening the floodgates of a dam would
dissipate threats to its underlying structure. Waiver embodies this allegory where the flow
of juveniles to the criminal courts is controlled by a "safety-valve" built into the machinery
of the juvenile justice system.

Jeffrey Schwartz (1983) succinctly captures the essence of this theory in the

following passage-

This theory suggests that society constantly has the desire to place stricter

punitive measures on juveniles so that they do not 'get off easy.’ There is

sufficient documentation that the general population is not san'sfied to afford

the juvenile his or her right to rehabilitation in the juvenile justice system.

Society must release its own pressures by seeing juveniles suffer more

severely or become more susceptible to harsher punishments and procedures.

(p.295; also see Feld, 1978; Valliere, 1986)
The ”safety-valve” theory suggests that waiver is a quick-fix solution to the problem of
juvenile crime. As long as it can be shown that the juvenile court is toughening its stance
toward serious juvenile offenders, it is presumed that the public will soften its rhetoric and
let the court continue its work One further rhetorical point can be made in that the "safety-
valve" seems to be stuck That is, increasing numbers of juveniles are being waived to the
criminal courts yet, there is no appreciable decrease in the public demand for tougher
sanctions. As such, one is uncertain as to whether this means the public is simply becoming
more vocal or whether the juvenile justice system is failing.

Though much has been written about the concept of waiver relative to due process
concerns, philosophical changes, and the strengths and weaknesses of the various transfer
mechanisms, there actually have been few empirical studies which have examined this

phenomenon. Most of these studies have been purely descriptive in nature and provide little

 

I—

 

 

 

 

in

sin

in

73

insight into the realities of waiver. That is: 1) what changes brought it about, 2) whether
changes in the law have had the desired effects on waiver, 3) how justice personnel feel
about waiver procedures, and even 4) whether the changes are seen as beneficial or
detrimental to the juvenile court. In the pages that follow, a short description of some of the
past waiver studies will be presented In addition, suggestions will be given as to a research
agenda for exploring whether waiver is living up to its expectations.

Researchers who have looked at waiver as a research question include Mays and
Houghtalin (1992), Champion (1989), and Gillepsie and Norman (1984). The commonality
among the works by these authors is the descriptive nature of their research. Mays and
Houghtalin (1992) conducted research on the waiver question through use of all probation
files of juveniles who were transferred in New Mexico from 1981 to June 1990. Their
primary interest lay in obtaining information about the outcomes of these juveniles who tried
as adults. A search of these probation files for this ten year period uncovered forty-nine cases
in which juveniles were transferred to criminal court (p.817).Of these cases, they found that
". .. 37 [had] reached disposition, ten were pending trial or sentencing, and two had no record
of criminal charges being filed after the transfer." (p.817)

They next obtained demographic information pertinent to these cases including
ethnicity, gender, and age (p.817). They also obtained ecological information (information
pertinent to employment status and home environment and legal information (such as
offense, priors, etc). Because of the small number of cases, Mays and Houghtalin used
simple descriptive information to discuss factors pertinent to waiver. The most notable

finding that they obtained was that the vast majority of juveniles who were transferred to

74

criminal court were treated very leniently relative to adults who committed similar offenses.
Other findings suggested that older juveniles were primarily transferred. That is, juveniles
who were 16 or 17 years old were most often waived (1992:818). In addition, these
researchers found that the transfer process targeted serious offenders (1992:819). Further,
they found that the majority of j uveniles who were transferred were incarcerated for their
offenses (1992:819-820).

Champion (1989) collected information on waiver in four states- Tennessee,
Virginia, Mississippi, and Georgia- for the years 1980 to 1988. Of interest to him was the
type of punishment imposed upon those juveniles who were transferred to criminal court.
In addition, he was interested in whether there was an increase in the frequency of use of
waiver in these states. All pertinent information used in the study was obtained from the
various juvenile service agencies, court reports, juvenile justice system personnel, and other
official records (p.580).

From this information, Champion found that there had been approximately 2818
waivers during this nine year period Using descriptive statistics, he revealed that between
1980 and 1988, the proportion of successful waivers for property offenses rose from 19%
to 50% (p.581). In addition, he found that as a proportion of successful waivers, homicide
offenses decreased during this same time span fi'om 40% to 31 % (p.581 ). Champion’s most
revealing finding was that the number of offenders placed on probation as a result of the
proceedings grew from 40% to 62% during the 1980-1988 time period (p.582). Those
actually sent to prison remained relatively steady (about 5%).

Gillepsie and Norman (1984) obtained information from various juvenile court

75

districts in the state of Utah for the years 1967 to 1980 on certified juveniles. Some of the
issues they sought to investigate included the frequency of use of waiver in Utah, the
offenses juveniles are typically waived for, and the dispositions of those who are actually
waived (p.23-24). Information pertinent to hose who were waived was taken from juvenile
court records from each of the five juvenile court districts.

Gillepsie and Norman (1984) found that most of those juveniles who were waived
committed property offenses. They noted that this finding contradicts assumptions that
waiver is used most frequently for offenders who commit more serious crimes against
persons. This group (personal crimes) comprised the second largest number of j uveniles who
were waived to criminal court (p.30). Also of note is the fact that twenty-one of the juveniles
that were waived received prison sentences and nine received jail sentences (p.30-3 l ).

The weaknesses inherent in purely descriptive studies is that they cannot provide
information relevant to the impetus behind waiver legislation. More importantly, descriptive
studies cannot readily account for the factors hat play a role in waiver decisions. In this
respect, research employing techniques which have some predictive efficacy, as in logistic
regression or log-linear, may be more appropriate. However, studies employing such
techniques are few in number.

Simon Singer (1993) conducted a study of the legislative waiver provision in the
state of New York. He used information from 103 juvenile offenders arrested between the
years of 1978 and 1985. All of the offenders within his sample committed at least one of the
enumerated designated felonies under the New York Juvenile Offenders law. The primary

focus for his research centered upon those factors which are the best predictors of a

76

prosecutor’s decision to seek an indictment. The dependent variable under study was the
decision of the prosecutor to seek an indictment (p.256). The independent variables which
were deemed relevant included race, marital status of parents, nature and extent of injuries
to the victim, prior felony offenses, and amount of media scrutiny (p.256-257).
The statistical techniques used to gauge the predictive efficacy of these variables was
logistic regression. This technique enables researchers to directly predict the odds of an
event occurring (see Agresti and Finlay, 1986 and SAS/ STAT User’s Guide, 1990). The most
significant finding of Singer’s research centered upon the fact that the only offense-related
variable of significance was the nature and extent of injuries to the victim (p.257). Also of
note was the fact that non-offense variables like the marital status of parents still had an
influence on the prosecutor’s decision to seek an indictment (p.257).

Poulos and Orchowsky (1994) also used logistic regression to explore the relevance
of legal and extra-legal factors on the waiver decision. Their study derived information about
1028 juvenile offenders who were waived over a three year period (1988-1990) for
commission of one of nine felony offenses (p. 7). From this number, a random sample of 364
offenders was chosen for analysis. Information about these offenders was collected from
data sources including a PSI database and the Youth and Family Services Profile databases
(P3). Variables used in this analysis included basic demographics (age, sex, race, locality,
“Vi“g arrangements) and other legally relevant variables such as offense, type of weapon
involved, and number of counts (p.9).

Their results indicated that prior adjudications for property offenses was the best

Predictor of the waiver decision. In addition, age and usage of a gun proved to be good

77

predictors of this decision as well Of special note was the fact that there waS not a
statistically significant race effect. Also of note was the fact that prior commitments and
drug offending behaviors were important predictors of the waiver decision (p. l 3).

Even though logistic regression is probably the best statistical method for analyzing
the waiver decision, there still seems to be something missing from these snrdies. One does
not derive a sense of whether waiver is working to achieve the ends for which it was
implemented. In addition. one does not get a sense of how juvenile justice decision makers
feel about the various waiver mechanisms. More importantly, one does not get an indication
of whether the needs of the juvenile offenders (treatment and procedural rights) are being
met or it waiver is antithetical to such needs. The only way to derive such information is

through survey data but again, studies employing this strategy are scarce.

Waiver Studies Conducted through Surveys

Hamparian et al. (1982) conducted a nationwide study of waiver which consisted of
two phases. During Phase I, the authors conducted telephone interviews with state agencies
which had the responsibility of collecting information pertinent to juvenile offenders and
also their processing within the justice system. There were five specific areas of interest for
these researchers- 1) the total number of juvenile offenders waived to criminal court after
Kent-style hearings, 2) the total number of juvenile offenders prosecuted in criminal court
through prosecutorial waiver, 3) the total number of juvenile offenders prosecuted in
criminal court due to legislative waiver, 4) the total number of j uvenile offenders prosecuted

L- criminal court because they met the minimum age requirements established by statute,

78

and 5) the total number of j uveniles prosecuted in criminal court for misdemeanor offenses
(p.241).

These researchers used a somewhat elaborate process to ensure that they collected
the relevant information. Since they were interested in obtaining data for the year 1978, they
offered several definitions to pinpoint this time period- calendar year, fiscal year, and other-
since state agencies tend to operate according to different time constraints for budgetary
purposes (Hamparian et al.:245). The respondents were then asked to provide a figure or
estimate of the number of j uvenile offenders waived to criminal court (judicial waiver). The
next question asked was contingent upon whether a non-zero response was given for
question #2. If the previous response was not zero, the respondents were asked whether any
of the juvenile offenders requested their own transfer to criminal court. This was an
interesting question in light of the researchers' recognition that some j uveniles would request
such transfers if they thought they a less severe punishment was possible in criminal court.
In addition, these juveniles were used an alternative data source through which the
researchers could obtain information that state agencies may have been aware (see
Hamparian et al., 19822245).

Hamparian et al. (1982) also asked the respondents to provide a figure or estimate
of how many judicial waiver hearings did not result in a transfer to criminal court. There
again seemed to be the recognition that the state agencies may not have exact numbers

because of the use of different recording practices. The respondents were next asked a series

79

of questions regarding the fiequency of use of prosecutorial and legislative waivers (p.245-
246). Afterwards, they were asked to differentiate between the figures (or estimates) based
on whether they were referring to individuals, cases, charges, or some other classification
(p.246). This was a commendable effort in light of the fact that agencies within and across
states use different recording practices to dispense with offenders who are adjudicated in the
justice system. These classifications appear to be consistent with the literature. Last,
Hamparian et al. (1982) asked the respondents to indicate whether misdemeanor offenses
resulted in the transfer of j uvenile offenders. If unable to do so, they were asked to provide
an alternative source who would know this information (p.246). The attempt to obtain
information via these sources is also consistent with the literature (see Champion, 1991;
F eld, 1987 ).

There were a few concerns that are worthy of discussion concerning the Phase I
questionnaire. First, the researchers should have made an explicit differentiation between
felony and misdemeanor offenses. The broad categories they used allow for the possibility
of overlap which could result in double counting. Second, the researchers should have more
carefully differentiated between prosecutorial waiver and legislative waiver As it stands,
the respondents may have been uncertain as to the type of waiver mechanism that is being
addressed by the questions because both incorporate age restrictions as triggering
mechanisms.

Phase II of the Hamparian et al. (1982) study attempted to obtain more intensive

80

information concerning waiver from the most populous counties within individual states and
also those counties that had requested five or more waivers during the year 197 8. During this
phase of the study, the researchers were primarily interested in obtaining seven specific
types of information: 1) the ages of those waived, 2) the sex distribution of those waived, 3)
the racial breakdown of those waived, 4) the most serious offense charged, 5) the disposition
of the cases in criminal court, 6) the sentences imposed by criminal court, and 7) the
maximum sentences imposed on those juvenile offenders who were confined by the criminal
court (p.244). As in phase I, the researchers employed telephone interviews to collect this
information

There were also a few concerns with the manner in which Phase H data was
collected First, it may have been appropriate for the researchers to ask the respondents to
provide information about the male and female distributions for all waiver provisions-
judicial, prosecutorial, and legislative. In this manner, the researchers could get a clearer
picture of how often waiver is used (see Dawson, 1992; Feld, 1987). Second, since the
juvenile court tends to retain jurisdiction up to age eighteen, it may have been appropriate
to include ages seventeen and eighteen within the age distribution. This is especially true
since the research literature demonstrates that these age groups are waived more often
because they are at the upper limit of juvenile court jurisdiction and it cannot do much in
terms of sanctioning them (see Bishop and Frazier, 1991; Feld, 1987; F orst and Blomquist,

1991). Third, the researchers should have expanded the race category. This would be

81

especially true for those more populous states with substantial Afro-American, Hispanic, and
Asian populations. To simply suggest that these groups are one and the same runs the risk
of confounding data interpretations relative to disparity that may exist between the
categories of offenders (see Eigen, 1981; F agan, Slaughter, and Hartstone, 1987; Fagan,
Forst, and Vivona, 1987; Hairston, 1981). Last, the literature suggests that waiver decisions
are not only based on the present offense with which juveniles are charged but also their
prior offense histories (see Keiter, 1973; Feld, 1983; Feld, 1984; Wizner, 1984). There is
not any evidence that Hamparian et al. (1982) attempted to gather this information.

A second study which used a survey to examine waiver decisions was conducted by
Joseph Sanbom (1994). Sanbom was interested in obtaining information about three specific
areas: 1) what is waiver (certification), 2) for whom should the waiver process be geared,
and 3) is waiver necessary at all. To explore these issues, Sanbom developed a uniform,
closed-end questionnaire which was administered to 100 juvenile court personnel including
judges, attorneys, and probation officers (p.268). In addition to the closed-end questions,
probes were used to allow the interviewees to expand upon various points pertinent to the
waiver process.

This questionnaire was administered to 100 respondents at three research sites so that
Sanbom could examine the comparability of responses. These sites included a large urban
city, the suburban fiinge around the city, and a rural county (p.269). The questions which

the interviewees were asked included the following:

82

1)Has the research literature been accurate in describing the waiver process?

(51257323, waiver process necessary within the juvenile justice system? (p. 270),

3) How appropriate are the waiver provisions? (p.271 ), and

4) What is the best method for transferring juvenile offenders to criminal

court and its relative strengths and weaknesses? (p.272)

Sanbom's questionnaire does present a few problems in that some of the questions
are vague and overly broad For example, he asked if the research literature was accurate in
depicting the waiver process but the responses somehow do not seem appropriate for the
questions. The responses ranged from "failure in the juvenile court philosophy" to "lack of
resources" (p.270-271). These responses seem to be more indicative of a shift in juvenile
justice policy. This author should have considered using different terminology to ask this
question.

In addition, the author may have been better served by asking multiple questions with
regard to the appropriateness of the waiver provisions. That is, Sanbom should have asked
different questions to get at how the respondents felt about age restrictions, whether prior
record should play a factor in the waiver decision, and the importance of attorney
representation during waiver proceedings. As it stands, this question is also overly broad and
confuses the issue especially with the inclusion of a self-certification response category.
Finally, the author should have considered asking the respondents questions about the
fiequency of use of the various waiver provisions. These then should have been followed by

questions about their effectiveness and which worked best. These modifications may have

83

given the author a better sense of the usage of these various mechanisms.

Summary

Though the studies that have been herein examined do not offer conclusive proof that
waiver is achieving its objective of identifying serious and violent juvenile offenders, they
do offer insight into a much larger issue relative to this area of inquiry. The studies all seem
to be asking different questions. That is, some of the empirical studies look only at felony
offenders while others seek to draw comparison between both misdemeanor and felony
offenders. Still, in others, the results are of limited value because of small sample sizes and
the homogeneity of the study population. A different approach is needed if one is to uncover
whether waiver really identifies and targets the appropriate candidates for waiver. Such an

approach will be offered in the following chapter.

Chapter 4

 

Methflology and Promsal for a Study of Waiver in Michigan
Proposed Framework for a Study of Waiver

Few of the studies that have examined waiver have gone beyond using simple
descriptive techniques (see Keiter, 1973, Eigen, 1981, Fagan et a1, 1987, Champion, 1989).
Even more, fewer studies have used survey techniques to explore this subject (see
Hamparian et al, 1982, Sanbom, 1994). What seems to be interesting is that most researchers
tend to think of these techniques as being mutually exclusive- one or the other can be used
but not both. One could suggest that a study combining both the qualitative assets derived
from a survey and the quantitative assets derived from statistical techniques would provide
data with a richness that is rare in the waiver literature. Given this, several proposed
intentions guide this research: (1) identify the factors that contributed to the legislature’s
decision to grant prosecutors charging authority in juvenile matters; (2) identify the criteria
used in making waiver decisions; and (3) assess the importance of Matza’s concept of the
“Principle of Offense” as a criterion for waiver. The manner in which this task will be
accomplished will be explained in the following pages.

This study chronicles the waiver statute changes of 1988. Though this research
project will primarily seek to determine the characteristics of waived youths, there are other

pertinent issues that will be addressed. First, this research explores the expanded authority

85

of prosecutors to make waiver decisions. Second, this research examines whether there are
any differences between those juvenile offenders who are sentenced as adults versus those
who are retained in the juvenile court. In other words, a profile will be generated as a means
to determine what makes waived juvenile offenders different Third, this research examines
whether waived juvenile offenders receive longer, more severe sanctions versus those who

commit similar offenses but are retained in the juvenile court.

Data Collection

The data used in this research study was obtained from several sources. First, records
were gathered from the Wayne-Metro Region Intake and Court Services Unit. Pre-sentence
social reports of juvenile offenders who were waived by the Wayne County Prosecutor’s
Office between the years of 1988 and 1996 were examined in order to obtain both socio-
demographic and legally relevant information. These files were prepared by intake workers
who worked under the auspices of the Intake and Court Services Unit and addressed the
following issues: (1) amenability to treatment and prospects of being helped within the
juvenile system; (2) nature of the offense (including co—defendants, victim relationship,
injuries, and use of weapons), prior offense history, and contacts with the juvenile court; (3)
family situation and pattern of living within the community; (4) work history; (5) school
history, including history of suspensions and fighting; (6) history of use and/or abuse of

alcohol and drugs; (7) psychological/psychiatric history; and (8) demographics, including

86

age, sex, race, gang membership, and out-of—home placements (non-detention) .

A second source of information were records maintained by the Wayne County
Prosecutor’s Office. Information was gathered on all life offenders (offenders who
committed waivable offenses) between the years of 1988 and 1996. These records included
legally relevant information such as the instant or current offense, date of petition, result of
waiver motion, presiding judge, final charge, and sentence.

The third source of information were records maintained by the Wayne County
Juvenile Court. Here, legally relevant information was also collected on those juveniles who
were waived to adult court. With the assistance of juvenile court personnel, 1 was able to
locate mittimus forms on these juveniles which documented their court appearances
subsequent to the petition for waiver to adult court. The forms contained information on
dates for court appearances, preliminary hearings, bail decisions, and admittance date into
the Wayne County Juvenile Detention Facility. In addition, information was obtained on the
investigative reports filed by police officers.

While no one set of data was complete, there was missing information, these
combined sources of data provided a fairly accurate description of not only the juvenile
offender but also the legal environment in which the waiver decisions were made. The use
of multiple data sources is a highly recommended technique and it tends to be especially
useful to “fill in gaps” in data (see Maxfield and Babbie, 1995). Information fiom the

above-mentioned sources was cross-referenced so that accurate profiles of the waived

87

juvenile offenders could be constructed and compared and also allow for the identification
of waiver criterion. Further, this information was instrumental in terms of making a
determination of what takes place from the initial charging decision to final sentencing. In
short, the issues of whether serious and violent juvenile offenders were actually being
targeted for waiver to adult court could more easily be addressed through use of these data
sources.

The time periods under consideration for this study span the years 1988 to 1996.
These years were chosen primarily because the new prosecutorial (discretionary) waiver law
went into effect in 1988. It should be pointed out that records fi'om the earliest time periods,
1988 and 1989, were the least informative given that they contained much missing
information. In addition, the manner in which the respective offices of Intake and Court
Services and the Wayne County Prosecutor’s Office collected information on waived
juveniles changed over time so there were some discrepancies in the data (issues centered

on amenability, charges, and dispositions were not always available in the data).

Variables

The variables used from the previously described data sources include: age of
offender (date of birth), race, sex, marital status of parents, instant offense (or charge), and
offense history (number and type of prior offenses). The selection and use of these variables

are informed by research conducted by Gutske (1989), Fagan and Deschenes (1990), Bishop

88

and Frazier (1991), Forst and Blomquist (1991), Mays and Houghtalin (1992), and Bishop
et al. (1996). Other variables which the research has shown to have an impact on the waiver
decision include: number of victims, injury to victims, use/type of weapon, and treatment
options and availability (see Feld, 1988; F eld, 1989 Poulos and Orchowsky, 1994). There are
other variables that may be appropriate to this study such as original charge and final charge.
These variables (and others) will be also be included in the analysis.

These dependent and independent variables will be operationalized in the following

manner-

Dependent Variable:

(a) sentence:
0= sentenced as juvenile Measurement: Nominal/Categorical
1= sentenced as adult

Independent Variables:

(b) age will be separated into three groups:
15 yrs, Measurement: Interval level
16 yrs,
17 rm;

(0) instant/current offense (offense which resulted in arrest) will be measured in the
following manner:

1 = felony- personal offense (class 1), Measurement: Nominal/Categorical

2 = felony- property offense (class I),

3 = felony- personal offense (class H),

4 = felony- property offense (class II)

5 = felony- personal offense (class III),

6 = felony- property offense (class III),

7 = felony- personal offense (class IV),

8 = felony- property offense (class IV),

9 = other felony (see Thomas and Bilchik, 1985; Bove, 1991; Zimring, 1991; Poulos

89
and Orchowsky, 1994)

(d) offense history (number of prior felonies) will be measured according to the number of

prior felonies accumulated by the youth:
1 = no prior felonies Measurement: Interval level

2 =1-2 prior felonies,
3 = 3 or more prior felonies,

(e) race will be categorized as:

1 = black, Measurement: Nominal/Categorical
2 = white,
3 = Hispanic,

4 = Asian-American,
5 = Native American,
6 = other;

(f) use of weapon will be measure as:
1 = used gun, Measurement: Nominal/Categorical
2 = used knife/razor,
3 = used club, stick, bat,
4= used other object;

(g) victim(s) injured will be measured as:
1 = victim died, Measurement: Nominal/Categorical
2 = victim injured/no hospitalization,
3 = victim injured/hospitalized, (see Poulos and Orchowsky, 1994);

(h) number of victims will be measured as:
1 = 1 victim, Measurement: Interval level
2 = 2 victims,
3 = more than 2 victims (see Poulos and Orchowsky, 1994);

(i) amenable to treatment will be measured as:
1 = not amenable to treatment, Measurement: Nominal/Categorical
2 = amenable to treatment;

0) sex of offender will be measured as:
O = male, Measurement: Nominal/Categorical

90
1= female;

(k) recommendation of intake worker:
O= waive jurisdiction to adult court, Measurement: Nominal/Categorical
1= retain jurisdiction in juvenile court;

(1) number of accomplices will be measured as:
1 = 1 accomplice, Measurement: Interval level
2 = 2 accomplices,
3 = more than 2 accomplices;

(m) number of prior detention placements will be measured as:

l = 1 prior detention placement, Measurement: Interval level

2 = 2 prior detention placements,

3 = 3 prior detention placements,

4 = more than 3 prior detention placements;
(n) living arrangements will be measured as:

1= two parent family Measurement: Nominal/Categorical

2= single parent/extended family

3= other arrangement
Hypotheses

The following hypotheses about the decision to sentence a juvenile as an adult court
versus retention in juvenile court were developed based on policies developed in accordance
with state statute. According to MCL §712A4, MCL § 764.1f, MSA §27.3178(598.4), MSA
§28.860(1), and MSA §28. 1072(3), if a juvenile committed one of nine enumerated offenses

and was at least 15 years old, he/she was eligible for waiver. Thus, the following hypotheses

were generated:

91

Hypothesis 1: only the most serious, violent, and chronic juvenile offenders
are waived to criminal court

Hypothesis 2: juvenile offenders who are 16-17 years old, at the upper age
ceiling, are more likely to be waived to criminal court than juvenile
offenders who are 15 years old.

Hypothesis 3: juvenile offenders who commit a class 1 felony- personal
offense are more likely to be waived than juvenile offenders who commit
any other type of felony offense.

Hypothesis 4: the “Principle of Offense” is a more important criterion for
waiver than social or legally-irrelevant factors.

Hypothesis 5: the prior record (offense history) of juvenile offenders
strongly influences their final disposition or case outcome.
Sample Size
Using the information obtained from the three previously mentioned data sources,
approximately 1,967 cases were identified as life offenders (juvenile who committed
offenses which resulted in a waiver petition being filed by the Wayne County Prosecutor’s
Office. Of these 1.967 cases, only 827 cases actually resulted in waiver while the remainder
(n=1,140) were kept in the juvenile court. Upon further investigation, it was discovered that
the actual number of waived cases was much smaller given that some of the cases were still
pending before the court or had been dismissed, declared as a mistrial, or resulted in not

guilty verdicts (see Table 1). Records could not be located for these cases so they were

92

Table 1.

Cases not included among those waived to adult court

 

 

Pending cases 11 = 137
Dismissed cases 11 = 74
Not Guilty 1) = 33
Mistrial n = 3
Returned to Juvenile Court n = 2
Transferred to other jurisdiction n = 1
Total cases n = 250

 

removed from the sample. Once these cases were removed, the final sample size was n =
577. It was presumed that this sample size would be adequate given that most of the
research to date have all used fairly small samples (see Appendix 1). It must be noted that
these cases were removed from the analysis because their respective files contained little or
no information and would thus skew the analysis (pre-sentence reports were not created for
these cases). The resulting sample size does meets the requirements necessary for both
logistic regression and discriminant analysis which require sample sizes of at least 20 to 50
times larger than the number of predictors or independent variables (see Hair, Anderson,
Tatharn, and Black, 1995: 195, Wright, 1995 :221).

Ideally, multiple counties should be examined in order to account for variation in

waiver decision making that may exist from one jurisdiction to another. Such an approach

93
was utilized in a report issued by the Office of Children and Family Services (1990). This
report examined waiver over a six month time period in twenty-seven Michigan counties.
The counties selected accounted for approximately 94% of all waiver cases in the state (p.4).
Wayne County, the most populous county in the state, accounted for approximately 52% of
the waiver cases (p.5). However, in the present study, access could only be obtained fi'om
Wayne County. Given that this county accounts for over half of the waiver cases in the state
(approximately 52 percent), the generalizations that will be drawn about waiver may not be
an accurate depiction of prosecutorial waiver operates in other Michigan counties or even

other states that use this same waiver mechanism.

Survey

The survey component of this project is a more direct way of examining specific
components of the “Principle of Offense.” Bearing in mind that waiver connotes a
philosophical change in the manner in which juvenile offenders are handled by the justice
system, it is believed that a survey is superbly suited for discerning issues which are not
easily quantifiable such as justice philosophy, amenability, and treatment. Further, many
empirical studies have simply failed to even consider these issues as they relate to the
likelihood that a juvenile will be waived (c.f., Norman and Gillepsie, 1986; Champion,
1989; Fagan and Deschenes, 1990; Dawson, 1992).

Two research studies which can shed some light on this issue were conducted by

94

Sanbom (1994) and Bishop and Frazier ( 1991 ). In their study conducted in 1991, Bishop and
Frazier conducted telephone interviews with juvenile prosecutors in twenty judicial circuits
in Florida The primary area of concern for these researchers was how the prosecutors
adapted to and used their expanded power to make waiver decisions. They noted that

it [was] important to consider how prosecutors reacted to their expanded

power, both in terms of their philosophical views regarding the transfer

of juveniles to criminal court, and in terms of the policies and procedures

they established to apply the law. We [were] concerned with how pro-

secutors’ personal orientations toward juvenile justice influenced their

perceptions of the utility and appropriateness of transfer; with whether
the change in the law had any impact on their perceived ability to achieve

valid and desirable goals; and with how the change in the law affected

practice throughout the state. (1991:288-289)

These issues are important precisely because the prosecutors’ personal justice
philosophy is related to their likelihood to pursue waiver of jurisdiction The more punitive
the justice philosophy, the more likely the prosecutor will initiate waiver proceedings. Not
surprisingly, Bishop and Frazier found that prosecutors with a “deserts” orientation favored
waiver. In addition, this group thought the juvenile justice system was too lenient and that
such leniency made juveniles worse (p.291 ). In contrast, the prosecutors that adhered to the
traditional juvenile justice philosophy believed that waiver should be used only as a last
resort (p.291).

Sanbom (1994) also utilized an survey methodology to examine the relevance of

justice philosophy and its relevance for waiver. He administered a survey to 100 juvenile

95

justice workers in three courts in order to determine whether perceptions of j ustice varied
across jurisdictions. Sanbom found that there was relatively little support for the “get tough”
strategy to crime reduction (p.272). Moreover, he found that “only about one-fourth of the
pro-waiver respondents maintained that society’s protection was better served by sending
some juveniles to criminal court and that certain crimes were so heinous that they were
beyond the purview of the juvenile court (p.270). Further, he found that the majority of
juvenile justice workers believed that the burden of proving that a juvenile offender was not
amenable to treatment should rest with prosecutor (p.272).

The issues raised by these methodologies are important for two reasons. First, justice
philosophy plays a central role in determining whether waiver proceedings will be initiated
by the prosecutor yet, empirieal studies tend to overlook this very important concept. More
importantly, it is a concept that is central to the notion of waiver and the “Principle of
Offense”. This research will seek to find out whether justice philosophy does in fact play a
role in this very important decision.

Second, the issue of treatment options and amenability tend to be overlooked by the
empirical research. Sanbom (1994) points out that many justice workers believe that
amenability to treatment should play a role in whether a juvenile offender is waived.
However, as has been pointed out, the importance of both treatment and amenability issues
are overshadowed by more legal-oriented factors. This may be due in part to the vagueness

of these concepts. Though they were originally mentioned as criteria to be considered in

96

waiver decisions by the U. S. Supreme Court in Kent v. United States (3 83 US. 451, 1966),
there has yet to be a clear elucidation of what they mean. This study will seek to provide

clarity and measures of these terms.

Operational Definitions for Major Survey Items

1. “Just deserts” Orientation- adherence to a philosophy of j ustice in which it is believed that

juvenile offenders must be held accountable for their crimes through punishment. Juvenile
offenders must not be coddled but instead, they must suffer the consequences for their
criminal acts. Punishment is the primary goal rather than treatment and rehabilitation.

2.”Traditional Juvenile Justice” Orientation- belief in a philosophy of justice in which
waiver is the last resort. Waiver should be a rare event and only those who are serious,
chronic and violent offenders should be waived to adult criminal court. The resources
(prograrns)of the juvenile justice system should be exhausted before waiver is triggered.

3. Amenability- the likelihood that a juvenile offender can be helped through services and
programs offered through the juvenile court given his/her age, character, family and
community controls, and treatment prognosis.

4. Dangerousness- a pattern of offending which includes referrals/adj udications for four or
more offenses, known histories of violent or aggressive behavior, or an offense resulting in
injury or death.

5. Plea bargain- negotiations between defense counsel and the prosecuting attorney whos
aim is to secure a reduction in charges for the juvenile offender.

The survey (see Appendix 3) was mailed to all judges (n=35) with jurisdiction in the

3" judicial circuit. This judicial circuit encompasses the entire county under investigation

97

and includes the Recorder’s Court in Detroit. Much like Bishop and Frazier (1991) sought
to demonstrate in their study, this research aims to assess whether justice philosophy varies
among the judges.

Using information obtained from the 1997 edition of the Mighigg Bar mm, the
survey was mailed out to all judges who have preside over waiver cases in Detroit
Recorder’s Court. The researcher of cognizant of the fact that the Recorder’s Court was
undergoing reorganization and that some of the personnel (judges) may have changed Still,
it was felt that any such changes would not affect or bias the findings that would be
obtained

Of the 35 surveys that were mailed to the Recorder’s Court judges only ten were
returned In addition, three judges declined to participate in the study. In an effort to increase
the response rate, a follow up letter was sent to all of the judges and requested that they
return the survey. This follow up letter was accompanied with endorsement letters provided
by the Family Independence Agency (see Hagan, 1994). Unfortunately, additional surveys
were not returned

The small number of surveys that were returned posed severe limitations on the
amount of useful information that can be obtained about the philosophies of j udges. Further,
there was limited information about the factors that judges believed to be important in

waiver Misions. Thus, the decision was made to discontinue the survey portion of the

study.

98
Was-tam
Discriminant Analysis

The data for this study may use one of two statistical procedures: discriminant
analysis and logistic regression. These procedures were chosen because of the nature of the
dependent variable. Since the dependent variable was measured at the nominal (or
categorical) level, the primary assumption underlying OLS regression is violated
Discriminant analysis is one multivariate technique that is useful for estimating relationships
between a single categorical variable and multiple independent variables measured at the
interval or ratio level (Hair, Anderson, Tatham, and Black, 1995: 179, also see Klecka, 1980).
Discriminant analysis can be used to explore the significance of several independent variable
in determining waiver outcomes- retain juvenile court jurisdiction vs. sentence as an adult.
More specifically, discrinrinant analysis can be used to determine (1) which variables were
most useful in predicting the likelihood of waiver to adult court and (2) the accuracy of the
predictions.

As briefly noted, discriminant analysis requires that the dependent variable be
measured at the nominal or categorical level. The group or entities under observation must
be mutually exclusive and collectively exhaustive (Silva and Stam, 1995:279; also see
Klecka, 1980). In other words, the entities can belong to one and only one group (waived vs.
retained). In addition, all entities must belong to some group (p.279).

A second characteristic of discriminant analysis is that the groups should be well—

99

defined (p.279). That is, there should be a qualitative, rather than an arbitrary, difference
between the groups. For example, the waived vs. non-waived groups in this research study
naturally differ with respect to their legal status.

A third characteristic of discriminant analysis is that the independent variables
(discriminating variables or attributes) should form as complete a description of the groups
(or entities) as possible (p.280; also see Klecka, 1980). These variables (or attributes) are
measured at the interval or ratio level. The specification of the variables (or attributes)
allows for accurate discrimination between groups. In the present research, the groups (or
entities) under observation are described by twenty (20) attributes, all of which have some
basis of support in the research literature. Still, it is often very difficult to know beforehand
which attributes are most relevant for purposes of discriminant analysis (see Hair et al.294—
195; Silva and Stam:287).

Several assumptions guide discriminant analysis. First, the independent variables
(attributes) must be drawn from a population that has multivariate normality (Silva and
Stam:285; Kleckaz9, Hair et al., 1995:196). That is, all independent variables are normally
distributed and conform to linearity in regression models when set to a dependent variable
(Silva and Stam:285). In addition, there is an assumption of independence among the
attributes. That is, attributes are not highly correlated with one another (Kleckaz8). Second,
there is the assumption of equality of covariance for each group (Kleckaz9). It is noted that

unequal covariances may adversely affect the classification process. Thus, violation of any

100

one of these assumptions may lead to the invalidity of the conclusions derived fiom the

discriminant analysis.

Logistic Regression

Logistic regression is also an alternative to OLS regression given that the dependent
variable is not measured at the ratio or interval level (continuous) but rather is dichotomous
(or binary). Again, the dependent variable under observation is marked by the occurrence
or nonoccurrence of two states- waiver to adult court or retention in juvenile court The
relationship between such a variable and other independent variables cannot be examined
using OLS regression because several assumptions would be violated, the more important
one being normality of the error term (see Hair et al., 1995:130; Wright, 1995 :218). That is,
the distribution assumes a binomial form rather than the more traditional linear form1 '.

In addition, the values of the dependent variable are bounded by zero and one.
(Hosmer and Lemeshow, 1989:7; Hairetal, 1995:130-131; Wright, 1995:219; Bachman and
Paternoster, 1997 :567 ). In other words, one derives values or probabilities that are never less

than zero and never greater than one. Thus, one can estimate the probability that an event

 

This difference is also noted by Hosrner and Lemeshow (1989) who note that the error term in
logistic regression can assume only two forms where
if y=l then 6 = 1-H(x) with probability H(x), and if y=0 then 6 = -H(x) with
probability l-Il(x). Thus, 6 has a distribution with mean zero and variance equal
to II(x)[1—II(x)]. That is, the conditional distribution follows a binomial distribution
with probability given by the conditional mean, H(x).” (p.7)

101

will occur or not occur simply by calculating the coefficients or odds ratios (Hair et al.,
19952131; Wright, 1995:222-223; Liao, 1994:14-15). An odds ratio of greater than one
indicates an increased likelihood or chance of an event occurring while an odds ratio of less
than one indicates a decreased likelihood or chance of an event occurring.

Logistic regression, like discriminant analysis, is also guided by several assumptions.
First, there is an assumption of mutual exclusivity and collective exhaustive groups (Wright,
1995:220). That is, no case can belong to more than one group (waiver vs. non-waiver) and
every case must be a member of the groups under observation. Second, the logistic
regression model must be correctly specified (Wright, 1995:220). In other words, all
essential (or relevant) independent variables must be included and nonessential variables
must be left out. Third, the probabilities (or outcomes) must be statistically independent
(Wright, 1995:220). That is, any individual case cannot have more than one outcome among
the data For example, an indication of waiver status before and after adjudication by a
judge. Fourth, the dependent variable of interest must be dichotomous (Wright, 1995:220).

It is noted that logistic regression is not as constrained by meeting all assumptions
(as in multivariate normality) as discriminant analysis so, it may be more useful when
certain assumptions cannot be met (see Hair et al., 1995:130)”. Still, the results obtained by

both discriminant analysis and logistic regression will be equivalent. For these reasons,

 

Press and Wilson (1978) make a similar observation when noting that discriminant analysis is
applicable only when the strict requirements of normalcy are met (p.700).

102

logistic regression was used in the analysis.

Chapter 5

Analysis of Data and Results

The purpose of this chapter is to address the issues raised by the hypotheses in the
previous chapter. Before doing so, I will first describe the sample and the social, legal, and
extra-legal variables that were contained in the data. A description will be found within the
following pages of the demographic variables as well as other social and legal variables
related to the waiver decision. The intent behind examining these variables is to determine
whether the “Principle of Offense” or legal factors are the predominant influence on the
waiver decision. That is, are legal factors the most significant elements in the decision to
waive youths to the adult court. In addition, the analysis of these variables will indicate
whether there are any significant differences between those juvenile offenders who are

waived to criminal court versus those who are retained in the juvenile court.

Description of the Population

There were approximately 577 juvenile offenders that were waived to adult court in
Wayne County between the years 1988 and 1996. Table 2 and Table 3 make a comparison
between the raw figures provided by the Wayne County Prosecutor’s Office for waived and
retained juvenile offenders for each of the years following the passage of the new waiver
legislation as compared with figures for waived juvenile offenders less cases that had the

following notations: dismissed, pending, not guilty, and mistrial.

103

104

As can be seen in Table 2, juvenile waiver to adult court was granted in about 40%

of cases initiated by the prosecutor’s office. It can also be seen in Table 2 that the volume

Table 2.

Summary of Tgtgl ngveg by Year

 

Year 1988 1989 1990 1991 1992 1993 1994 1995 1996 'Toufls

Toufl 17 68 74 97 61 82 165 121 99 784
VVahmd

Thou 50 110 79 90 85 88 268 218 175 1163

Juvenile
(Zoun

Percent 25% 38% 48% 52% 42% 48% 36% 36% 36% 40%
‘Whnved

Tenn 67 I78 153 187 146 170 453 339 274 1967
Waiver

Peunon

s to

[hue

of waiver petitions dramatically increased from 1994 to 1996. This increase may reflect a
change in the philosophy of the prosecutor’s office whereupon greater emphasis is placed
on targeting serious and violent juvenile offenders for prosecution.

Table 3 is illustrative of how waiver cases are handled in the adult court. Almost 1/3
(31%) of all juvenile offenders whose cases were waived were sentenced as adults. This
figure is comparable to the percentage suggested by Jeffrey Fagan (31%) in his study which
looked at serious and violent crime among juveniles in Detroit and three other cities

(199021 12). Two observations can be made: (1) the trend in sentencing juvenile as adults in

105
Wayne County has been steady over the last 9 years and (2) for the most part, serious and
violent juvenile offenders are given one last chance at rehabilitation before the juvenile

justice system transfers or waives them to the adult system.

Table 3.

Smma fSentncin u m bY r

 

Year 1988 1989 1990 I991 1992 1993 1994 1995 1996 Totals

Total 8 27 IO 29 16 22 26 21 18 177
Senten-

ced as

Adult

Total 3 33 46 45 34 45 73 51 58 388
Retain-

ed in

Juv.

Court

Percent 73% 45% 18% 37% 28% 31% 26% 29% 24% 31%
Sarten—

eed as

Adult

Total I l 60 56 74 50 67 99 72 76 565
Waived
to Date

 

" Totals are less than N= 577 due to missing sentencing outcomes.

 

Age, Sex, Race, and Sentencing
Of the 577 juveniles who went through the waiver process, from petition to
sentencing, approximately 557 were males and 20 were females. This disproportionate

involvement of males in waivable offense has been documented in other research (see

106
Thomas and Bilchik, 1985; Nimick, Szymanski, and Snyder, 1986; Dawson, 1992;
Podkopacz and Feld, 1995; Podkopacz, 1996; Bishop et al., 1996;) and, thus, is not very
surprising that males account for 96% of the sample.
This sample also showed that minority youth were disproportionately involved in
waivable offenses (see Eigen, 1981 ; Fagan et al. , 1987; Fagan and Deschenes, 1990). African

American youth accounted for 84% of the sample while white youth accounted for 9% of

 

the sample (see Table 4).
Table 4.
Summ of and ntenc
Age Race Sentence Sentence Totals
Yes No

fifteen Other 5 17 22 (4%)
fifteen Afii-Am 37 140 177 (32%)

sixteen Other 15 29 44 (8%)
sixteen Afri-Am 182 109 291 (52.9%)

seventeen Other 1 0 1 (18%)
seventeen Afii-Am 5 9 15 (2.7%)

Total 245 (44.5%) 304 (55.2%) 550

 

" missing values omitted (n=7)

 

In view that other racial groups comprised only 7 % of the sample (Hispanics, Asian
Americans, and Amerinds), they were combined with the white youth to form a dichotomy

consisting of African American and “Other”.

107

The finding that Afiican American youth are disproportionately involved in waivable
offenses may simply be an artifact of the data given the racial composition of the county
fi'om which the data was taken and may not necessarily imply that they black youths are
discriminated against. However, this finding will be later explored in greater detail.

The age composition of this sample, a very important legal criterion for waiver,
indicates that the vast majority of juvenile offenders who were waived were between the
ages of 16 and 17 (see Table 4). More specifically, juveniles who were fifteen years old
comprised thirty-six percent of offenders waived to adult court. Further, offenders who were
sixteen years old comprised the bulk of all offenders who were waived (64%) while
offenders who were seventeen years of age comprised only three percent of those waived.
Thus, the picture that emerges is one which suggests that waiver tends to predominately
affect African American males who are sixteen years old. Moreover, older juveniles (17
years) are waived less fiequently even though they are near the end of the jurisdictional age

limit of the juvenile court.

Characteristies of Present/Instant Off’ense

Given that juvenile offenders must commit a designated felony as required by
Michigan Statutes before the waiver process is triggered, an attempt was made to identify
the offenses for which they were most often waived. It was found that the initial charge filed

by the prosecutor’s office was most often a felony-personal offense. Approximately 98% of

108

the initial charges against the waived juvenile offenders were felony-person offenses that
included murder 1, murder H, assault, robbery, and CSC (criminal sexual conduct) and all
contained an element of violence (see Table 5). It should also be noted that 56% of the
waived juvenile offenders had multiple charges filed against them by the prosecutor’ 5 office.
Among multiple charged offenders, thirty-eight percent were charged with two offenses,
fourteen percent were charged with three offenses, and four percent were charged with four
or more offenses (see Table 5). Table 5 shows that waived juvenile offenders accounted for
a total of 753 violent felony-personal offenses, 12 felony property offenses, and 248 Other-
type offenses inclusive of possession of firearms, drug related offenses, fleeing and eluding
police, carrying a concealed weapon.

Thus far these data suggest the prosecutor’s office uses prosecutorial waiver to
target serious and violent juvenile offenders. The vast majority of waived juvenile offenders
committed Class I felonies, the most serious of all felony offenses as defined by Michigan
criminal statutes. Thus, there does not appear to be any evidence that less serious and/or

non-violent juvenile offenders are targeted for waiver.

Accomplices, Weapon Use, and Victims
In addition to the severity of the offense, previous research suggests that other legal

factors affect the waiver decision. These factors include weapon use, accomplices, victim/

109

Table 5

S mm of Ini ' 1 ha esFil Prosecut r’s Offic

 

Felony-Personal Felony Property Other
(Violent)
One Charge 569 6
Two Charges 152 7 157
Three Charges 26 4 69
Four or more Charges 6 1 16
Total offenses n= 753 n= 12 n= 248

 

offender relationship, and injury to victims. First, the use of a weapon in the commission of
an offense is believed to influence the waiver outcome (Poulos and Orchowsky, 1994).
Among this sample of juvenile offenders, approximately eighty percent used a weapon
during the commission of the offense. The weapon of choice was a gun A gun was used in
seventy-three percent of the offenses committed by juveniles in this sample. A knife/razor
was used in five percent of the offenses and a club/bat was used in two percent of the
offenses. Finally, it should be noted that eleven percent of the juveniles did not use a weapon
of any type.

Another factor believed to affect the waiver decision is co-defendants (accomplices),
especially adult co-defendants. There is the presumption that juveniles are more likely to be

waived if there were adult co-defendants (see Fagan et al., 1987 ; Fagan and Deschenes,

110

1990). These data show that 62% of the offenders had accomplices. Among those who had
accomplices, 22% had one accomplice, 20% had two accomplices, 14% had three
accomplices, and 6% had four or more accomplices. Thus, it becomes quite clear that the
majority of waived juvenile offenders in this sample did not act alone but rather in tandem
with others.

Examination of the offender/co-defendant relationship showed that adults were just
as likely as sixteen year old juveniles to be named as co-defendants in felony offenses
committed by juveniles. In particular, these data show that 101 adults were co-defendants
in criminal cases committed by juveniles, whereas, 102 sixteen year old juveniles were co-
defendants in crimes committed by adults. Moreover, fourteen and fifteen year old juveniles
were less likely to be named as co—defendants in the cases brought by the prosecutor’s office.
In fact, only 7 co-defendants were below the age of fourteen. While the exact number of co-
defendants could not be determined for the entire sample due to missing data in 17% (n=
100) of the cases, these data provide a fairly accurate description of the offenders’ age and
co-defendant relationship.

The number of victims as well as the nature of the relationship between the offender
and victim revealed some interesting facts. First, there was a single victim in approximately
64% of the cases and in 19.4% of the cases there were multiple victims comprised. In one
case there was no identifiable victim because it as a VCSA offense (violation of controlled

substance act) in which drugs were sold to an undercover officer). Here again, victim-related

111

information was missing in the remaining 16.5% (n= 95) of the cases. Nonetheless, these
data show that most offenses involved a single victim.

When the victim-offender relationship was examined, it was found that
approximately 3% of the victims were family members, whereas another 25% of victims
were acquaintances, and 52% of the victims were strangers. Information was missing in
19.4% (n= 1 12) of the case . Nonetheless , these data show that the majority of the victims
were male (see Table 6) and strangers to the perpetrators. Males were most susceptible to
victimization in violent gun-related offenses. Ninety-seven percent of victims in gun-related
offenses were male. These data also show that male victims tended to be alone during the
time at which they were the victimized (72% were the sole victim in such incidents). It
should be noted that to a much lesser extent, males also tended to be the primary victims of
stabbings (n= 27).

The majority of the victims sustained some injury during the commission of the
offense. Specifically, it was found that sixty percent of the victims sustained an injury during
the commission of the offense. Further examination revealed that 37% of the victims had
gunshot wounds, 2% were stabbed or cut, 10% were sexually assaulted, 7% were
beaten/kicked, and 1% received some other form of trauma to the body.

Examination of Table 6 illustrates that males comprised the bulk of those who were
victimized with guns. Among the approximately 256 victims injured or otherwise victimized

by guns, males accounted for approximately 95% of the victims. Even in sexual assault

112

cases, males were victims in 38% of the victims.

Table 6

S T er r fIn' b x

 

Nature of Inj ured- Hospitalized- Hospitalized- Total for all

Injury Yes Treated Died Incidents
Males Only Males Only (male)

Gunshot Yes 100 (39%) 143 (55.8%) 256

Stab/cut Yes 6 (35%) 9 (53.9) 17

T raurna Yes 0 (0%) 7 (100%) 7

Sex Assault Yes 25 (38%) O (0%) 65

Beat/kicked Yes 6 (15%) , 5 (12.5%) 40

 

* Note: nature ofirrjury and treatment was missing in 18% ofthe cases and thus the injury
sustained and the treatment could not always be determined fi'om the case files.

 

Legal factors (Statutory)- Recommendations, Amenability, Threat, and Risk

The recommendation made to the court by the Intake and Court Services Unit is also
believed to influence the waiver outcome. The data showed that a recommendation to retain
the juvenile in the juvenile system was given in 69% of the waiver cases. A recommendation
to waive custody to the adult system was given in only 16% of the cases. The full impact of
the recommendation could not be gauged because there was missing data in 15% of the

cases (n=87).

113

The research literature indicates that juvenile offenders who are not amenable to
treatment tend to be more often waived to adult court (c.f., Fagan and Descehenes, 1990;
Podkopacz and Feld, 1995). Hence, the relationship between amenability and waiver was
also examined for this group of juvenile offenders. Data showed that for the waived
juveniles in this sample, 57% were considered amenable to treatment; whereas another 8%
were considered not amenable to treatment. Hence, there was considerable missing data for
this variable (34%) so the extent of the relationship between amenability to treatment and
waiver could not be fully examined.

Waived juveniles were also assessed in terms of their pattern of offending, threat to
community, and risk. These data showed that only 12% of the juveniles had prior histories
of serious or repetitive patterns of offending. Fifty-six percent (56%) of the waived juveniles
did not have prior histories of serious or repetitive patterns of offending. However, there was
a significant amount of missing data for this variable (32%) which may obscure the
influence of this variable on waiver.

In twelve percent the cases, waived juveniles were considered a threat to the
community if they were released at age 21. That is, these juveniles were believed to require
more time for rehabilitation than could be offered by the juvenile justice system On the
other hand, data also showed that 58% of waived juveniles were not considered a threat to
the community. Yet it must be noted that a significant amount of data was also missing for

this variable (30%).

114

The risk level of the waived juveniles was also examined. Risk refers to the potential
of the juvenile to commit firrther crimes or pose an danger to others. Data showed that 31%
of the waived juveniles had low risk scores, 27% of the waived juveniles had medium risk
scores, and 20% of the waived juveniles had high risk scores. Thus, even among waived

juveniles, risk scored varied Data was missing for 21% of the cases.

Prior Offense and Previous Court Processing

Given that previous research suggest that prior offending behavior impact waiver,
the nature and extent of past offending was examined (see Singer, 1993; Poulos and
Orchowsky, 1994; Kinder et al., 1995; Podkopacz and Feld, 1995 ). These data showed that
54% of the waived juvenile offenders had committed prior felony records. Among this
group, 26% had committed one prior felony, 13% had committed two prior felonies, 17 %
had committed three or more prior felonies. It should be noted that about 30% of the waived
juveniles in this sample had no history of past felony offending.

The majority of waived juveniles’ first contact with the juvenile justice occurred at
age fifteen (25%) or sixteen (24.7%). The youngest age for initial justice system contact
among waived youth was age nine (n=1). However, it did appear that offending dropped off
considerably once juveniles reached their seventeenth birthday.

Relative to detention, approximately 1/3 of the juveniles (33.6%) had previously

been confined in juvenile detention. Among those who had been previously detained, 21%

115

had been detained only once, while 8% had two prior detentions and , 4% experienced three
or more prior detentions. Approximately 42% of the juvenile offenders had no prior history
of detention. While 24% of the cases had missing data on prior detention (n= 137), these
data show the majority had never experienced detention.

Information was obtained on whether the juvenile offenders had experienced prior
placements (non-detention) outside of the home. These data showed that almost three-
quarters of the youth (73.4%) had never experienced placement outside of the home. Among
those waived juveniles who were placed outside of the home, five percent had only one non-
detention placement and three percent two or more placements (non-detention). While there
was missing data for 17.8% of the cases, most waived juveniles were never placed outside
of the home.

Nineteen percent (19%) of the waived youth were under a sentence charge at the
time of the instant offense. That is, they were under some type of supervision by the juvenile
court at the time the current waivable offense occurred. Of this group of waived youth, 18.5

% (n=107) had active probation status at the time of the instant offense.

Extra-legal Factors- Presiding Judge
During the years 1988 to 1996, approximately sixty-two different judges presided
over juvenile waiver cases in Wayne County. Given the assumption that the judge

himself/herself may influence the waiver outcome, the relationship between the judge and

116

waiver was examined One judge, who has inconspicuously been identified as Judge #3,
handled approximately 33% of the cases in which these juvenile offenders were waived
(n=188). Another judge, identified as Judge #2, handled about one-fifth the number of cases
as Judge #3 (n=3 7). Since Judge #2 handled a moderate number of cases, other judges who
handled a similar nrunber were consolidated in this category (judges who handled 11 to 50
cases). Given the small number of cases that were handled by the remaining judges, they
were consolidated into one group and labeled Judge #1 (judges who handled fewer than 1 1

cases). Thus, the following categories were formed: Judge #1, Judge #2, and Judge #3.

Extra-legal Factors- Family and Employment

The research literature suggests that extra-legal factors exert an influence on the
waiver decision. However, the influence of such factors is believed to be significantly
reduced with prosecutorial waiver (see Poulos and Orchowsky, 1994). In order to examine
the relationship between extra-legal factors and the waiver decision, the family environment
and employment status of the parents were included in the analysis. Among waived youth,
the overwhelming majority came from single-parent homes. That is, 45% of waived youth
lived in female-headed households. Approximately 5% of the waived youth resided with
their fathers, 20% of the waived youth resided with two parents (i.e., biological parents,
stepfather/mother, and/or stepmother/ father), 7% of the waived youth resided with their

grandparents, 5% of the waived youth resided with relatives (e. g., aunt, cousins), and 2%

117

had some other living arrangement (wards of the state).

In regard to employment, forty-four percent (44%) of the waived youth had primary
care givers who were employed while thirty-one percent (31%) of the waived youth resided
with care givers who were not employed. However, the employment status for care givers
was missing in 23% (n=l31) of the case files.

The employment status of the waived juvenile offenders was also examined. These
data showed that 34% of waived youth had some type of employment history. It should be
noted, however, that this figure does not reflect whether they were employed at the time of
their arrest for the current offense. Data also showed that 50% of the waived youth had no
employment history. Employment history could not be determined for 16% of the waived

youth due to missing data.

Extra-legal Factors: Substance Use/Abuse and Mental Health

The nature of the relationship between substance use and abuse among waived
youths was also examined. The data showed that 52% of waived youths had a history of
substance use and/or abuse while 32% of the waived youths did not use or abuse alcohol or
drugs. The vast majority of waived youths used/abused alcohol (n=237). The second most
commonly used substance among waived youths was marijuana (n=215). For the most part,
waived youths tended to avoid using “hard” drugs such as crack/cocaine (n=6), lsd (n=3) and

mesealine (n=3). Substance use/abuse could not be determined in 16% of the cases due to

l 18
missing data.

Though 52% of waived youths records indicated a history of substance use/abuse
(n=301), less than 1% sought or received treatment (n=4). Fifty-one percent of waived
youths never received any kind of treatment or counseling (n=293). Treatment history could
not be determined for 16% of the waived youth due to missing data.

Next, the mental health status of waived youths was examined. These data showed
that 7% of the waived youth had a history of psychological problems. Sixty-two percent
(62%) did not have a history of psychological problems. In 12% of cases, the psychological
history of the juvenile could not be determined because the psychological reports on the
youths had not yet been received by the Intake and Court Services Unit. The psychological

history of the waived youth was missing in 19% of the cases.

mm 1' P l 'on
Thus, waived juvenile offenders were assessed in terms factors such as age, sex, race,
prior offense history, family environment, employment history, substance use/abuse history,
psychological history, and amenability. Table 7 provides a summary of the variables that
are believed to influence the waiver decision. From 1988 to 1996, there were 577 waiver
motions filed by the prosecutor’s office. The number of these waiver motions seemed to
peak in 1994 but leveled off by 1996. Thirty-one percent of these waiver motions resulted

in adult sentences (n=l77) while the remainder were kept in the juvenile court (n=388).

119

African-American males were disproportionately represented among those who were
waived to adult court. Juvenile offenders from an African-American background made up
84% of the waived cases while white youth comprised 9% of waived cases, and Other racial
groups comprised 7% of the waived youth.

Fifteen and sixteen year old youth comprised the bulk of those offenders who were
waived to adult court (71%). Older juvenile offenders (17 years and older) comprised only
26% of the youth that were waived. However, sixteen and seventeen year old African-
American males were much more likely to be sentenced as adults than was any other group
(n= 62 and n=56 respectively).

The majority of waived youth committed class I felonies, the most serious felonies
under Michigan statute. Less than 1% of the waived youth committed class IV felonies.
Thus, it appears that the waived juveniles do indeed commit the violent and serious crimes
that are targeted by prosecutorial waiver.

The majority of the waived youth were not considered a threat to the community
(5 8%). In addition, 58% of the waived juveniles had either low or moderate risk scores. Only

20% of the waived youth had high risk scores.

120

Table 7.

Summary Table of Variables Affecting the Waiver Decision

 

Legal Factors
Variable Frequencies Percentages
Current Offense-Total #
F elony- Person(violent) 1000 98%
Felony- Property 12 1%
Other 4
Age at Instant Offense
15 yrs 207 36%
16 yrs 349 60%
17 yrs 16 3%
Weapon Used
Yes 461 80%
No 50 7%
Victim Injured
Yes 343 59%
No 161 30%
Hospitalized- Died
Yes 175 30%
No 149 26%
Co-defendants
l Co-defendant 125 22%
2 Co-defendants 113 20%
3 Co—defendants 81 14%
4 or more Co- 32 6%
defendants
Prior Felony Referrals
Yes 315 55%
No 175 30%

 

121

Table 7 (continued)

Extra-legal factors- Offender Specific

 

Variable

Race
African-American
Other

Sex
Male
Female

Age at First Referral
lessthan14yrs

14 yrs

15 yrs

l6yrs

17 yrs

Prior Out-of-Home
Placements

Yes

No

Employment History
Yes
No

Substance Use/Abuse
History

Yes

No

History of Psych.
Problems

Yes

No

Presiding Judge
Judge #1
Judge #2
Judge #3

Frequencies

487
67

557
20

73
93
146
143
30

49
424

l 92
290

301
185

43
356

178
200
182

Percentages

84%
12%

97%
3%

13%
16%
25%
25%
5%

8.5%
73%

33%
50%

52%
32%

7%
62%

31%
35%
31%

122

Table 7 (continued)

Legal F actors- Statutory Criteria

 

Amenable to Treatment

Yes 328 57%
No 48 8%
Risk Level

Low 179 31%
Medium 156 27%
High 1 18 20%
Time Remaining in

Juvenile Jurisdiction

less than 1 yr 78 14%
1 to 1.5 yrs 149 26%
1.5 to 2 yrs 144 25%
2 to 2.5 yrs 57 10%
2.5 to 3 yrs 46 8%
time expired ll 2%
Recommendation of

Intake/Court Services

Retain 397 69%

Waive 93 l 6%

 

123
The bivariate relationships between the independent variables and the dependent
variable were examined in order to assess the direction and strength of the relationships.
This procedure was done in an attempt to determine which variables would be most suitable
for use in multivariate predictive type models. Legal variables were first examined to assess

their impact on the waiver decision.

Legal Factors

It was hypothesized that the current offense would exert the most influence on the
decision to waive a juvenile offender to adult court. Given that 98% of the juveniles in the
sample committed felony- personal offenses, this variable should be the predominate factor
in the waiver decision There was a significant relationship between the current offense and
the waiver decision (-.3379, p= .000). Relatedly, the relationship was examined between
whether a gun was used during the instant offense and the waiver decision, however, a
significant relationship was relationship was not found between these two variables (.0706,
p= .156). One possible explanation may hinge on the high degree of multicollinean'ty
between two variables- use of weapon and use of gun. That is, when the relationship
between use weapon and sentence was examined, there was a significant relationship (. 1283,
p= .010). The explanatory power of use gun may be masked given the high degree

multicollinearity with the variable use weapon (.70). Thus, the use of weapon variable was

124
be dropped in favor of use of gun.

Relative to the current offense, injury to victim and death of victim were examined.
Given that the extent of a victim’s injury is related to the seriousness of the offense, it was
reasoned that juveniles were more likely to be waived if the victims sustained injury or died.
Whereas these data did reveal a significant relationship between injury to victim and the
waiver decision (.2606, p= .000); when injury was examined in terms of gun injury versus
non-gun injury, a significant relationship was also found. In sum, a greater proportion of
those juveniles who had a gun and used it during the current offense were waived (32%)
more than juveniles who did not use a gun (29%). Given that the victim’s death reflects the
most serious or egregious offense, it was not surprising to find a significant relationship
between the victim’s death and waiver (.3086, p= .000).

The number of charges pending against a juvenile affected also affects the waiver
decision Prior research suggests that the number of charges is an important legal variable
(c.f., Fagan and Deschenes, 1990; Lee, 1994; Poulos and Orchowsky, 1994; Podkopacz and
Feld, 1995). Similarly, these data showed that the number of charges impacts waiver and it
was positively associated with the waiver decision (Gamma =. 1971, p= .000). That is, more
juveniles were waived who had multiple charges than were juveniles who had only one of
two charges.

The relationship between the age of the juvenile offender and the waiver decision

was examined These data showed that there was a significant relationship between age and

125

waiver (Spearman R=.1511, p= .000). Specifically, these data suggest that older juveniles
are more likely to experience waiver. Moreover, twenty-seven percent of sixteen year old
juveniles were waived compared to eighteen percent of fifteen year old juveniles, forty-
seven percent of seventeen year old juveniles, and fifiy-eight percent of eighteen year old

juveniles.

Legal Factors- Prior Offense History

The prior offense history of juvenile offenders is also believed to affect the waiver
decision. When the relationship between prior felony offenses and waiver was examined
no significant relationship was found. However, when there was a history of prior felony
offenses (2, 3, or more), a significant relationship was found (Gamma=.2193, p= .000). This
finding suggests that while waiver was not associated with a single prior felony, it was
associated with the number of prior felony charges. For example, twenty-four percent of
juvenile offenders with no prior felony offense were waived, whereas twenty-seven percent
of j uvenile offenders with one prior felony were waived, thirty-one percent of j uveniles with
two or three prior felonies were waived and forty-eight percent of juveniles with four or
more prior felonies experienced waiver. Clearly, a larger percentage of j uvenile offenders
with an extensive past felony offense history were more often waived.

The prior offense history of j uvenile offenders was fiirther scrutinized to determine

whether a relationship existed between probation status and the waiver decision. This

126

variable was examined because juveniles with prior felonies are also more likely to have
experienced probation at some point in their offense history. In addition, it is also likely that
the juvenile was on probation at the time of the current offense. For this study, probation
status was dichotomized in terms of previous probation experience and no probation
experience. These data showed that there was no significant relationship between probation
status and the waiver decision (.0826, p= .097). That is, there was little difference in waiver
between the percentage of juvenile offenders with a past history of probation (37%) and
juvenile offenders without a past history of probation (26%).

Because of the relevance of detention and the risk to the commtmity posed by the
juvenile offender, the relationship between detention status and waiver was examined.
Detention was dichotomized into detained and hail experiences. There was a significant
relationship between detention status and the waiver decision (-. 1483, p= .002). That is,
more juvenile offenders were waived who were detained than were juveniles who were on
bond. For example, thirty-three percent of j uveniles who were detained were waived while

twenty percent of juveniles on bond were similarly waived.

Legal Factors- Other Statutory Considerations:
The amenability of j uvenile offenders to treatment has long been thought to influence
the waiver decision. Though there is uncertainty as to what constitutes amenability to

treatment (see Feld, 1987), it nevertheless remains one of the cornerstones of the waiver

127

decision. When the relationship between amenability and waiver was examined, these data
showed that there was a significant relationship between amenability to treatment and
waiver (-.3827, p= .000). That is, more juveniles were waived to adult court who were
considered non-amenable than are juveniles who were considered amenable. For instance,
twenty-four percent of j uvenile offenders who were considered amenable to treatment were
waived to adult court, whereas seventy-seven percent of juvenile offenders who were not
considered amenable to treatment were similarly waived This finding suggests that some
juvenile offenders were given another chance for rehabilitation if it was believed they were
salvageable and/or could still be helped through the resources available in the juvenile
justice system.

Further, the time line, amount of time remaining in juvenile court jurisdiction, was
examined. This variable was included in the analysis given that amenability to treatment is
often thought to be contingent upon how much time the juvenile court retains jurisdiction
over the offenders before he/she reaches the age of majority. A significant relationship (-
.1185, p= .039) was found between time line and waiver.

The relationship between threat to community and the waiver decision was included
in the analysis given its significance as a proxy for juvenile offenders’ past offense history
and seriousness of the current offense. These data indicated that there was a significant
relationship between threat to community and waiver (.5089, p= .000). That is, perceived

as a threat to the community were waived more than juveniles who were not perceived as

128

a threat. In particular, seventy-nine percent of juvenile offenders who were perceived as a
threat to the community were waived to adult court, whereas only twenty percent of j uvenile
offenders not perceived as a threat to the community were similarly waived.

The risk level of the juvenile offender was included in the analysis because of its
proxy for the seriousness of the current offense and amenability to treatment. A significant
relationship was found between risk and waiver (.2096, p= .000). That is, juvenile offenders
with high risk levels were more often waived to adult court than were juvenile offenders
with either low or moderate risk levels. Consider, twenty-one percent of juveniles assessed
as low risk were waived to adult court while thirty-one percent thought to be of moderate
risk and forty-two percent ranked as high risk juvenile offenders were similarly waived.

To summarize, the factors consisting of amenability to treatment, threat to
community, and risk level all influence the waiver decision. Given their individual influence
on this decision and the impact of the aforementioned variables on the court’s
recommendation, the recommendation decision as a whole was next evaluated
Recommendation was dichotomized into retain in juvenile system versus waive to adult
system. These data showed a significant relationship between recommendation and waiver
(.5708, p= .000). That is, more juvenile offenders are waived to the adult system if a
recommendation was made for waiver. For instance, eighteen percent of j uvenile offenders
whose recommendation was retention in the juvenile system were waived, however; eighty-

three percent of j uvenile offenders whose recommendation was waiver were waived to adult

129

court This finding suggests that judges tend to follow the recommendations that were made

to them.

Extra-legal factors- Offender Specific:

The research literature suggests that the race of the offender influences the waiver
decision (see Eigen, 1981; Fagan, 1987 ; Fagan and Deschenes, 1990; Poulos and
Orchowsky, 1994). That is, it is believed that juvenile offenders who are African-American
are more often waived to adult. Accordingly, the relationship between race and the waiver
decision was examined. Given the small numbers of non Afiican-Americans in the sample
(n=67), this variable was dichotomized into African-American and other. Unlike the
aforementioned studies, these data showed that there was no significant relationship between
race of the offender and waiver (.0237, p= .973). In other words, African-American juvenile
offenders (31%) were waived to adult court just as often as non-African-American juvenile
offenders (31%).

The living arrangement of youths is also believed to affect waiver outcomes. In brief,
juveniles from intact homes may be less often waived than juveniles from non-intact homes
(see Lee, 1992; Poulos and Orchowsky, 1994). Thus, the relationship between living
arrangement and waiver was examined. This variable was categorized into two parent home,
single parent/extended family, and other. These data showed that there was no significant

relationship between living arrangement and waiver (.0328, p= .526).That is, juvenile

130

offenders from two parent homes (28%) were similarly waived to adult court as juveniles
from single parent/extended households (30%) and juveniles in other living arrangements

(28%).

Extra-legal Factors- Out-of-Home Placements and Judges:

The relationship between out-of-home placements and the waiver decision was
examined. The rationale behind examining this variable reflects the court’s prior attempts
to treat the juvenile offender. It is also related to the exhaustiveness of treatment efforts
made by the juvenile court in that juveniles who have extensive out-of-home placements are
more often waived to adult court because they have reached the limits of the resources that
can be offered by the juvenile court. These data showed that there was a significant
relationship between the number of out-of-home placements and the waiver decision
(Gamma=.2416, p= .015). That is, juvenile offenders with previous out-of-home placements
were no more likely to be waived to adult court than were juvenile offenders with no out-of-
home placements. This may reflect the fact that many of those who are waived have no prior
felony histories. Thus, there should be no expectation that they would experience multiple
out-of-home placements.

It is also believed that the presiding judge may indirectly influence the waiver
decision (see Podkopacz and Feld, 1995). Given that the tenure on the bench may differ

among the judges, it is assumed that judges with more experience in handling juvenile cases

131

are less inclined to sentence juveniles to adult court while judges with less experience are
more inclined to sentence juveniles to adult court. Initially, a significant relationship was
found between presiding judge and waiver (-.2390, p= .000). However, it was believed that
the true relationship may be masked because of the great differential that existed in the
number of cases handled by the judges. Accordingly, this variable was grouped by the
number of cases handled by the judges. Thus, judges who handled between one and ten
cases were labeled category A judges (31%); judges who handled between eleven and fifty
cases were labeled category B judges(3 5%); and the judge who singularly handled more than
fifty cases (31%) were labeled category C judges.

These data showed that there was a significant relationship between category A
judges and waiver (-. 1730, p= .000) as well as the category C judge and waiver (.2493, p=
.000). There was no significant relationship between category B judges and waiver (-.0753,
p= .076). This finding suggests that juvenile offenders who appear before category A judges
were more often waived (43%) than juveniles who appeared before category C judges
(14%). Further, juveniles who appear before category B judges were waived at nearly equal
rates (36% waived versus 28% retained). The reason could lie in the fact that Judge C has
the most experience in handling waiver cases (longest tenure as he handled cases which
appeared in all nine years of the data) whereas, juveniles who appear before judges in
category A faced judges who have the least amount of experience in handling waiver cases

since they handled the fewest number of cases.

132

The bivariate relationships show that both legal and extra-legal variables influence
the waiver decision (see Table 8). Various aspects of the juvenile’s past were influential
even though they were not legal factors. In particular, these data point out that juvenile
offenders who had previously been on probation and detained experienced waiver more
often than juveniles who had no such past history. In addition, it was found that the
recommendations made to the court were influential in the waiver decision. These
recommendations include assessments of a juvenile’s amenability to treatment, threat to
community, and risk level. All of these elements are positively associated with the waiver
decision Moreover, the amount of experience that a judge has on the bench affects the
waiver decision. That is, judges with the least amount of experience with adolescent
offenders waive juveniles to adult court more than do judges with extensive experience.
Thus, one could argue that there are courtroom processes that are just as important to the
waiver decision as the legal factors themselves. However, this will be further explored in the

proceeding multivariate analysis.

Three Competing Logistic Regression Models:
In order to assess the influence of both the legal and extra-legal variables on the
waiver decision, three logistic regression models were develOped. Logistic regression is an

alternative statistical technique used to assess relationships among variables when the

133

 

 

Table 8
Bivariate Correlations

D.V.- Sentence
1. V.
Age .151 1*
Recommendation .5708“
Current Offense -.3379"'
Number of charges .1971 *
Victim Injured 2606*
Death of victim .3086“
Number of prior felonies .2193“
Use weapon .1283*
Use Gun .0706
Sex .0242
Race .0237
Judge -.2390*
F irst-time Offender -.086O
Detention -.1483"‘
Probation .0826
Threat .5089“
Amenable -.3827*
Time line -.1 185 *
Risk 20%“
Number of Placements 2416*
Living Arrangement .0328
Substance Use/Abuse .0070
Psychological History .0363

 

*Marked Correlations are significant at p< .05

 

dependent variable is binary or dichotomous. Further, this method does not assume linearity

or equality of variance (see Wright, 1995). It should also be noted that logistic regression is

134

advantageous because it allows one to estimate the probability that a certain event will
occur. That is, the coefficients that are derived from the logistic regression can be used to
estimate the probability of y [dependent variable] at different values of x [independent
variable] , and from that, determine the exact change in the predicted probability between
any two values” (Bachman and Paternoster, 1997, p.577). Thus, positive coefficients
increase the probability of an event while negative coefficients decrease the probability that
an event will occur (see Liao, 1994).

Three logistic regression models were constructed. The first model (Model 1)
contained the legal offense variables believed to affect the waiver decision The second
model (Model 11) contained both the legal and extra-legal variables (see Table 9). The third
model (Model 111) contained the legal variables and all significant extra-legal variables. In
Model I, there were four very significant predictors- death of victim, number of charges,
recommendation, and age. First, death of victim was a significant predictor. These data
showed that there was an increased likelihood that juvenile offenders would be waived if the
victim died as a result of the offense (odds ratio 2.76, p= .000). Given that homicide is the
most serious felony offense for which juveniles can be prosecuted, it is understandable that
offenses which result in the death of the victim would also result in a greater likelihood of
waiver.

The number of charges pending against a juvenile was also significant. Juveniles

with a greater number of charges had a higher likelihood of being waived than juveniles who

135

Table 9

Logistic Regression Results for Predictors Affecting the Sentencing Decision

 

Model 1
Estimates SE.
Legal Predictors
Age
16 or 17 .820 .291
Number of Charges .473 .164
Felony Category .045 .140
Used Gun -. 155 .379

Number of Accomplices -.067 .138
Victim Died 1.01 .275
Number of Prior Felonies -.045 .135

Odds
Ratio

2.27
1.60
1.04
.855
.934
2.76
.955

Legal Predictors- Statutory Considerations

Recommendation 3.00 .361
Threat to Community
Amenable to Treatment
Time line

Risk

Extra-legal Predictors
Sex
Race
Presiding Judge

Judge #3
First Time Offender
Probation Status
Number of Placements (non-detention)
Living Arrangements
Substance Use/Abuse History
Psychological History

-3.10 .549
367.34
160.77 df=8

Constant
-2*log (Likelihood)
Model Chi-square

20.192

.044

p=.000

Model H
Estimates SE.
.966 .455
.634 .237
-. 148 .332
-.147 .545
-.361 .215
.759 .413
-.216 .315
1.09 .828
1.85 .834
.384 .795
-.182 .163
.425 .271
.627 1.04
.205 .600
1.02 .498
-.043 .608
.158 .407
.162 .327
-.058 .424
-.514 .397
.012 .009
-5.71 2.38
191.91
108.43

df= 21 p=.000 175.37 df=9

Odds
Ratio

2.62
1.88
.862
.862
.693
2.13
.804

2.99
6.39
1.46
.833
1.53

1.87
1.22

2.79
.957
1.17
1.17
.943
.597
1.01

.003

Model 1]]
Estimates SE.
.850 .297
.484 .165
.033 .138
-.202 .382
-. 138 .143
.863 .285
-.028 .138
2.93 .369
1.22 .342
-5.09 .812
352.74

Odds
Ratio

2.34
1.62
1.03
.816
.871
2.37
.972

18.67

3.40

.006

p=.000

 

136

had fewer charges (odds ratio 1.60, p= .004). That is, as the number of charges filed by the
prosecutor’s office increased, the likelihood that a juvenile would be waived also increased.
While this finding may be a result of prosecutorial overcharging, the alternative, and perhaps
better explanation, suggests the prosecutor has a very strong case which supports the serious
charges against the juvenile. Surprisingly, the current offense was not significant in this
logistic regression model. The reason could be that there was little variation in this predictor
given that 98% of the waived juvenile offenders committed felony-personal offenses".

A third significant predictor was the recommendation of the Intake/Court Services
Unit. This predictor was included in this model because specific statutory criteria (threat,
amenability, time line, risk) are addressed in all recommendations that are made to the court.
These data showed that there was an increased probability of being waived if the
recommendation favored waiver. That is, juvenile offenders were more likely to be waived
if the Intake/Court Services Unit made a recommendation for waiver (odds ratio 20.1, p=
.000). This finding also makes sense given that the Intake/Court Services Unit assesses
juvenile offenders’ amenability to treatment (or lack thereof) and the risk they posed to the

community, two factors outlined in the waiver statute. Since these individuals would have

 

l3

Barnes and Franz (1989) also note that the current offense was not a very influential predictor in their
research on waiver. More specifically, they note that “the number of priors, the use of a pleas bargain, prior
treatment, and the nature of the most serious prior offense all overshadow current offense in sentencing.”
(p. 131) It is important to point out that these researchers attributed the lack of significance of current
ofiense to what they called a “ladder of treatment.” That is, there are successive stages of punishment
severity attributed to offenders based on the current offense and past “treatment” options (1989: 130).

 

137

more knowledge of the offenders’ responsiveness to treatment and history, judges hesitate
to disregard their recommendations.

The fourth strongest predictor was age at current offense (amount of time remaining
under juvenile court jurisdiction). Older juvenile offenders faced a greater probability of
being waived than juveniles with longer periods of time remaining in juvenile court
jurisdiction (odds ratio 2.27, p= .005). That is, juveniles who were sixteen or seventeen had
a higher likelihood of being waived than juveniles who were fifteen years old It should be
noted that age of the offender may serve as a proxy for time line, a statutory criteria that
addresses whether offenders can be reasonably rehabilitated in the amount of time they have
remaining in the juvenile system. Thus, older juvenile offenders would have shorter time
lines while younger juvenile offenders would have longer time lines. Accordingly, the
shorter the time line (age at offense), the greater the probability that offenders will be
sentenced as adults.

These four legal factors were the most influential predictors of whether a juvenile
will be waived. A recommendation of waiver by the Intake/Court Services Unit significantly
increases the likelihood that juveniles will be waived. These recommendations include an
assessment of whether offenders can be adequately treated in the amount of time remaining
in the juvenile system. Since offenders with shorter time lines (older offenders) have the
least amormt of time to undergo treatment or rehabilitation, it is not surprising that they face

a higher probability of being waived. Moreover, juvenile offenders who commit felonies

 

138

which result in the victim’s death also face a high probability of being waived . In addition,
juveniles with numerous charges were more often waived.

The second logistic regression model (Model H) showed great improvement in the
predictors of waiver (see Table 9). Two additional significant predictors were found in this
model. First, the presiding judge was a significant predictor. The data showed that there was
an increased probability that juvenile offenders would be sentenced as adults if they
appeared before particular judges (odds ratio 2.79, p= .040). More specifically, juveniles
who appeared before judge C, the judge who had the greatest amount of experience in
handling waiver cases, were less likely to be sentenced as adults compared to juveniles who
appeared before judges with less experience (judges A and judges B) with waiver cases. This
would suggest that judges’ tenure on the bench may temper their waiver decisions.

The second significant predictor was threat to community. Juvenile offenders who
were perceived to pose a threat to the community had a higher likelihood of being waived
(odds ratio 6.39, p= .027). This predictor, an issue of safety, is also addressed in the
recommendation by the Intake/Court Services Unit, however, there were no problems with
multicollinearity.

The data in Model H also showed that predictors such as race, sex, living
arrangement were not significant. For example, juvenile offenders who were African
American were no more likely to be sentenced as adults than non-African American youth

(odds ratio 1.22, [F .733). The fact that race was not an influential factor was also seen in

139

the bivariate correlations. Similarly, sex (odds ratio 1.87, p= .549) and living arrangement
(odds ratio .943, p= .891) had no significant impact on the likelihood that juvenile offenders
would be waived.

In order to assess which model had the greater predictive value, the classification
tables were examined. In Model 11, the percent correctly classified as waived increased. That
is, when only legal variables were in the model, fifty-seven percent of the cases were
correctly classified as waived However, when the legal-statutory and extra-legal variables
were added to the model, the percentage of cases correctly classified as waived increased
to sixty-nine percent”. Thus, one may conclude that the addition of the legal-statutory and
extra-legal variables increases the predictive utility of Model II beyond that of Model I.

A third logistic regression model was developed (Model III) in order to determine
which of the previous models were the most parsimonious. Model III contained the legal
variables and the significant extra-legal factors. All of the previous legal factors remained
significant predictors as well as one extra-legal factors. It should be noted that one predictor,
threat, was dropped from the model because of problems with multicollinearity (.79).

The data showed that death of victim remained significant in Model HI (odds ratio
2.37, p= .002). Again, this finding was not surprising considering that homicide represents

the most egregious and violent offense for which juveniles can be prosecuted. It seems that

 

'4 To test the overall rate of correct classification, the following method was used:
100[(156+52)]/243 = 85.5% (Hosmer and Lemeshow, 19892147).

140

judges are likely to waive juveniles when the offense results in a homicide.

In order to assess the overall goodness of fit of the three models, one has to examine
the difference in the likelihood ratio statistic for the baseline model (legal variables only)
and the models containing legal-statutory, extra-legal predictors and significant extra-legal
predictors (see Bachman and Paternoster, 1997). The likelihood ratio statistic for Model I
is 367.3475 (8 d.f.) and 191.9160 (21 d.f.) for Model 11. The difference between these two
likelihood ratio statistics is 175.4315 with 13 degrees of freedom. The critical value of chi-
square with 13 degrees of freedom and alpha .05 is 22.362. Because the obtained value from
the likelihood ratio statistic (175.4315) is greater than the critical value (22.362), the null
hypothesis suggesting that extra-legal factors have no effect is rejected (also see Hosmer and
Lemeshow, 1989:31 ).

A similar value was derived for Model H and Model 111 (160.8317, d.f.= 12). The
critical value of chi-square with 12 degree of freedom and alpha .05 is 21.026. Because the
obtained value from the likelihood ratio statistic (160.8317) is greater than the critical value
(21.026) , the null hypothesis regarding the impact of extra-legal variables is also rejected.
Thus, it would appear that Model 11 is the better of the three models. Further evidence which
confirms the better fit of the model can be obtained from the classification table. In Model
I and Model III, fifty-seven percent of the cases were correctly classified as waived.
However, in Model 11, the percent correctly classified as “sentenced as adult” increased to

sixty-nine percent.

 

141

One other measure of goodness of fit for logistic regression models is pseudo R2
which is analogous to the R2 measure in linear regression. Its chief advantage is that the
values for this statistic are bounded by 0 and l (where it approaches 0 as the quality of fit
diminishes and l as it improves). Also, it should be noted that there are several drawbacks
to using this summary statistic. First, it is not universally accepted or employed". Second,
it is subject to misinterpretation and it does not take into account the number of independent
variables (see Aldrich and Nelson, 1984: p.58-59). Thus, one must be cautious in
interpreting the significance of this statistic.

Pseudo R2 is defined in the following manner:

pseudo R2 = c/(N+c),
where c is the chi-square statistic for the overall fit of the model and N is the total sample
size (Aldrich and Nelson, p.57; also see Walsh, 19872182; Feder, 1995:298). Calculations
based on this formula show that
pseudo R2: 108.4368/577+108.4368

with a value of .16”.

 

15

King (1986), for example, suggests that the presumption that there exists an R2 statistic in logistic
regression is a statistical fiction (p.682).

16

An alternative pseudo R2 measure has been proposed by Hagle and Mitchell (1992). This measure has the
form:
RL— -21n (Lo/LlyN- 21n (Lo/Ll) = 2LLR/N-2LLR
where I.0 = likelihood va,ue of the null hypothesis, and
L1 = likelihood value for the firll model.
Thus, 191.9160/(557-191.9160) = .498

142
Summary

This analysis indicates that both legal and extra-legal predictors are influential in the
decision to sentence a juvenile as an adult. Four significant legal predictors- age, number
of charges, death of victim, and recommendation- were significant in Model I and Model
111. These data showed that death of victim was a significant predictor of waiver in Model
I and Model III. That is, juvenile offenders who committed crimes in which the victim died
were more likely to be sentenced as adults compared to other offenders. Given that homicide
is the most serious and egregious offense, one should not be surprised that juveniles
committing these crimes would be harshly sanctioned by the court. However, In Model H,
death of victim did not achieve significance (odds ratio 2.13, p= .06).

Two legal-statutory factors, recommendation and threat, achieved significance in the
models. It may be suggested that judges closely follow the recommendations made by the
Intake/Cornt Services Unit The reason may lie in the fact that judges rely on the expertise
of this unit to make assessments about the prospects of j uvenile offenders to be rehabilitated
through the services offered by the juvenile justice system. Consequently, the court

sentenced eighteen percent of the juveniles as adults in cases in which a recommendation

 

A third pseudo R2 measure was proposed by DeMaris (1992:53), where

R2L =-21og LO - (~210g L1)/-210g Lo with

L0 = log likelihood with constant only, and

L1 = log likelihood of firll model.

Thus,

(300.3528-191.9160)/300.3528 = .36
Given that all three measures produced different values, one should heed the admonition of Aldrich and
Nelson (1984) and interpret their significance with caution.

143

for retention in the juvenile system was made and eighty-two percent of the cases in which
there was a recommendation for waiver.

Though recommendation did not achieve significance in Model H, one of it’s
component, threat to community, was significant (odds ratio 6.39, p= .027). This finding
may suggest that judges consider the totality of the recommendation. That is, the court may
express an interest in how the Intake/Court Services Unit arrive at its decision because of
the possible masking effect exerted by a blanket recommendation. Still, the data showed that
in cases where juveniles were considered a threat to the community, seventy-nine percent
were sentenced as adults whereas in cases where they were not considered a threat twenty
percent were sentenced as adults.

There was one surprisingly significant extra-legal predictor- presiding judge. This
finding was unexpected given the fact that the new waiver legislation supposedly removed
subjectivity from this arena. Prosecutorial waiver was designed so that objective fact would
be the preeminent factors in the decision making process. Subjectivity, it seems, is still an
ingrained part of the sentencing process. While the motives of the judges are beyond the
scope of this study, one could suggest that their philosophies of justice may play a part in

this decision making process.

Chapter 6

Implications of Findings and Conclusions

The purpose of this research was twofold. First, it sought to explain how
prosecutorial waiver came about in Michigan. Second, it sought to identify those factors that
best predict whether a juvenile offender will sentenced as a juvenile or adult. That is, the
idea behind the “Principle of Offense” was examined to determine if legal factors drive the
decision to prosecute and sentence juvenile offenders as adults.

It must be recalled that in 1987, the Michigan House of Representatives debated a
68 bill package which amended the juvenile code and gave prosecutors expanded power to
make waiver decisions. The statute changes also amended and revised the criteria for
consideration in making waiver decisions. For example, the following criteria were added:
whether the offense is part of a repetitive pattern of offenses which would lead to one of the
following determinations~ ( l) the child is not amenable to treatment, [and] (2) that despite
the child’s potential for treatment, the nature of the child’s delinquent behavior is likely to
disrupt the rehabilitation of other children in the treatment program (see M.S.A.
27.378(598.4); House Bill No. 5203). In addition, the changes also provided for: (1) whether
despite the child’s potential for treatment, the nature of the child’s delinquent behavior is
likely to render the child dangerous to the public if released at the age of 19 or 21 and (2)

whether the child is more likely to be rehabilitated by the services and facilities available

144

145
in adult programs and procedures than in juvenile programs and services. (see M.S.A.
27.378(598.4); House Bill No. 5203).

The impetus for these changes grew out of a concern that the number of hardened,
serious juvenile offenders was increasing at both the state and national level. (see House
Legislative Analysis Section, H.B. 4731 et al., 8-19-87). Justification for the changes in
Michigan were inferred from several sources. Statistics obtained from Juvenile Court
Statistics (1988) indicated that for the four year period 1984 to 1988, personal related
offenses such as assault and rape increased by 10.2% among juvenile offenders. A
continuation in this trend was reflected in a report released from the Office of Juvenile
Justice and Delinquency Prevention which suggested that

in 1991 juveniles were responsible for 19% of all violent crimes (i.e., rape,

personal robbery, and aggravated and simple assault) reported to the NCVS
in which there was a single offender... (1995 :47)

Seventeen percent of all serious violent crimes in 1991 were committed by

juveniles only... (1995:47)

Many of the legislators who supported changes in the law believed that by providing
stiffer punishment and longer sentences, juvenile offenders would be forced to take
responsibility for their actions (sponsors for the bills submitted to the Michigan Legislature
included Reps. Strand, Van Regenmorter, Leland, Benane, and Smith).There were two

overriding points behind the changes: (1) juvenile crime was up and it was also more serious

146

and (2) juvenile offenders were not doing enough time (see Duranczyk et al., 1988; House
Legislative Section, H.B. 4730 et al., 8-19-87; House Legislative Analysis Section, H.B.,
4731 et al., 7-26-88). Further, proponents of clmnges in the waiver statute believed that the
current judicial waiver system was too cumbersome, especially where crowded court dockets
prevented some juveniles from getting the immediate treatment that they needed As such,
greater flexibility was sought by empowering prosecutors to make waiver decisions (see
Duranczyk et al., 1988; House Legislative Analysis Section, H.B. 4730 et al., 8-19-87; House
Legislative Analysis Section, H.B. 4731 et al., 7-26-88).

The juvenile codes of Michigan were changed in 1988 in an attempt to “get tough”
with juvenile offenders. These changes granted prosecutors the power to make waiver
decisions if juvenile offenders met certain criteria— (1) if they were 15 or 16 years old and
(2) if they committed one of nine enumerated felony offenses. Significant changes and

modifications were once again made to the juvenile statutes in 1996.

Addressing the hypotheses:

The first hypothesis suggested that only the most serious, violent, and chronic
juvenile offenders are waived to criminal court The results from the analysis showed that
approximately ninety-eight percent of the juvenile offenders who were waived committed
Class 1 felony offenses, the most serious offenses according to Michigan statutes. These

felonies included homicide, armed robbery, cscl, carjacking, and kidnaping. To further

 

147

illustrate this point, Table 10 shows the offenses committed by the waived juvenile. One can
clearly see that the bulk of the offenses for which these juvenile offenders were waived
(98%) were violent, person-felonies. Further, these waived juvenile offenders were charged
with very few property offenses so the belief that more felony property offenders are waived
than felony person offenders is not borne out here (also see Kinder, Veneziano, Fichter, and

Azuma, 1995).

Table 10

Summary of Total Offenses Committed by Waived Juveniles

 

 

Felony Offense Category Number of' Crimes
Homicide/Attempted Murder/Conspiracy 206
Assault Offenses 205
Robbery 223
Firearms 243
CSC Offenses 65
Carjacking/UDAA 50
Property, including Arson 12
Kidnapping 5
Drugs 2
Other felonies 2

 

Total (N) 1013

 

148

One additional manner in which one can determine whether the most serious and
violent offenders are waived is to compare the offenses of the juveniles who were retained
in the juvenile court versus those who were sentenced as adults. This issue is specifically
addressed in hypothesis 3 which postulates that juveniles who commit Class I felonies are
more likely to be waived than juveniles who commit other types of offenses. Table l 1 shows
the number of waived offenders who were sentenced as adults as well as waived offenders
who were retained in the juvenile justice system. These data show that fifty-two percent of
juveniles who committed homicide-related offenses were sentenced as adults. This finding
is in keeping with the logistic regression models which suggested that offenders faced a
higher likelihood of being sentenced as adults if the victim died (also see Eigen, 1981).
These data also show that fifteen percent of j uveniles who committed armed robbery and
thirty-three percent of juveniles who committed CSC offenses were sentenced as adults.
Overall, thirty-one percent of the offenders were sentenced as adults. Thus, one can make
the argument that serious and violent juvenile offenders are properly targeted by the waiver
law.

The issue of age and the likelihood ofbeing waived was addressed in hypothesis two.
Specifically this hypothesis suggested that juvenile offenders who are 16 or17 years old at
the time of the instant offense are more likely to be waived than offenders who are 15 years
of age. These data showed that there was a significant relationship between age and

sentencing at the bivariate level (.1672, p= .001 ). For example, twenty-two percent of 15

149

Table 11

Summary Table of' Offenses Committed by Waived and Retained Juvenile Offenders

 

Offense- Most Serious Waived- Retained-
Sentenced as Adult Sentenced as Juvenile

 

Homicide 93 85
Attempted Murder 0 1
Armed Robbery 24 135
Unarmed Robbery 0 3
Assault 37 76
CSC 18 40
Carjacking 2 28
Firearms Violation O 4
Drugs 1 1
Total (N) 175 383

 

year old youth were sentenced as adults, thirty-seven percent of 16 year old youth were
sentenced as adults, and thirty-eight percent of 17 year old youth were sentenced as adults
(also see Fagan etal., 1987 ; Lee, 1994; Kinder et al., 1995). This relationship was confirmed
in the logistic regression models which showed that age was a significant predictor of
waiver. All three logistic regression models showed that older j uvenile offenders (16 and 17)
were significantly more likely to be sentenced as adults than younger offenders (15 years
old).

The idea behind the “Principle of Offense” was addressed in hypothesis four.

150

Specifically, this hypothesis suggested that legal variables were more important in the
waiver decision than extra-legal variables. The data showed that legal and legal-statutory
predictors were more influential in the sentencing decision. Eleven of fifteen legal/legal-
statutory predictors were significant at the bivariate level. Among these were instant offense,
death of victim, number of charges, prior felonies, and age.

When the relationships between the legal/legal-statutory predictors and waiver were
examined in the logistic regression models, age of offender, recommendation, death of
victim, number of charges, and number of prior felonies continued to be remain very
influential and significant predictors of the sentencing decision Thus, one can conclude that
the “Principle of Offense” is adhered to by prosecutors. That is, elements of the offense are
the driving force behind the decision to prosecute juveniles as adults. For example, race,
which has been suggested by some researchers as a contributor to the waiver decision (see
Keiter, 1973; Fagan et a1, 1987 , Guttman, 1995) was not influential in this sample of waived
juvenile offenders.

Of the twenty-seven predictors examined at the bivariate level, there was only one
significant extra-legal predictor of waiver, presiding j udge. These data showed that there was
a significant relationship between the presiding judge and sentencing. It was reasoned that
judges with longer tenure on the bench were less likely to sentence juveniles as adults. The
logistic regression models showed that judges with the most time on the bench actually

sentenced the fewest number of juvenile offenders as adults. This relationship can be seen

 

151

in Table 12. This table implicitly suggests that the philosophies of justice held by these

judges affects the waiver decision.

Table 12

Relationship Between Presiding Judge and Sentencing

 

Retained in Juvenile Sentenced as
Court Adult

Judges A - 57% 43%

(178 cases)

Judges B- 64% 36%

(197 cases)

Judge 0 86% 14%

(181 cases)

 

To further illustrate this point, a comparison was made between the case dispositions
for the judges. The data in table 13 how some interesting relationships. First, the vast
majority of waived offenders were retained in the juvenile justice system. Sixty-nine percent
of the juvenile offenders were retained in the juvenile court Second, the judges rarely

utilized alternatives to incarceration.

 

152

Table 13

Summary of Dispositions by Judge

 

 

 

Length of Sentence Judges A Judges B Judge C
DSS/FIA 102 127 155
Probation 6 1 2
Time Served 0 O 1
Boot camp 0 1 1

6 mon to 10 yrs 14 4 5
11 yrs to 19 yrs 10 14 5
20 yrs to 29 yrs 8 17 9
30 yrs to 50 yrs 15 16 3
More than 50 yrs 6 5 0
Life 17 12 0
Total (N) 178 197 181

 

Only two waived offenders were sentenced to boot camp while nine were placed on
probation under supervision of the Department of Corrections. Of those judges who imposed
incarceration, Judge C clearly was not as punitive as Judges A or Judges B This observation
is supported by the bivariate correlations which showed a significant relationship between
the judge and sentencing. In addition, the odds ratio from the three logistic regression
models support this conclusion. That is, waived juvenile offenders who appear before Judges
A or Judges B have a greater likelihood of being sentenced as adults than juveniles who

appear before Judge C. Thus, these data suggest that Judge C may be more rehabilitation

 

 

153

oriented whereas, Judges A and Judges B are more punitive or punishment oriented.
However, any question about the justice philosophy of judges and its effect on their
sentencing decisions cannot be definitively answered by this data Still, the observations
derived from this data are congruent with research which suggests that the sentencing
decision of j udges cannot be viewed in isolation but must take into account other courtroom
processes and influences (see Podkopacz and Feld, 1995; Podkopacz, 1996).

The relevance of prior offense history was addressed in hypothesis 5. This hypothesis
suggested that prior offense history of waived j uvenile offenders strongly influences the final
case disposition. The research literature also suggests that juveniles’ prior offenses play a
significant role in the waiver decision (Lee, 1994; Poulos and Orchowsky, 1994; Podkopacz
and Feld, 1995). The data showed that there was a significant relationship between prior
offense history and waiver. Specifically, the bivariate correlations showed that there was a
significant relationship (.00) between the number of prior felonies and sentencing as an
adult. However, prior offense history was not a significant predictor in the three logistic
regression models. This finding contradicts assertions found in the research literature about
the influence of this variable. For example, Poulos and Orchowsky (1994) found that the
more prior felony property adjudications a juvenile had, the greater likelihood his or her of
being transferred” (p. 13). No such relationship was found in this data. Thus, this hypothesis

was not supported by the data.

154
Theoretical Implications:

The guiding philosophy of the “Principle of Offense” is that legal criteria provide
objective facts which are to be used as guidelines by both prosecutors and judges in
dispensing justice. That is, factors pertinent to the offense are to be the basis upon which one
makes decisions regarding the culpability of j uvenile offenders. As such, the seriousness of
the offense and the harm it caused should be the preeminent concern of the justice system.
This principle, in theory, removes subjectivity from the legal arena and routinizes decision
making so that like offenses are treated the same. This principle also restrains discretion so
that punishment is dispensed in a fair and consistent manner.

David Matza (1964) proposes five components to the “Principle of Offense” which
consist of: (l) cognizance, (2) consistency, (3) competence, (4) commensurability, and (5)
comparison. Two of these components- consistency and commensurability- have the most
significance of this research. Consistency of punishment engenders the notion that similar
dispositions should be awarded for similar crimes. To ensure that consistency of dispositions
can in fact occur, the “Principle of Offense” stresses the importance of legal criteria in the
decision making process.

In this research, an attempt was made to assess the impact of legal criteria on the
waiver decision These legal criteria included age of offender, offense, number of
accomplices, number of prior felonies, number of charges, death of victim, and

recommendation. Four of these criteria proved to be very strong predictors of the waiver

155

decision The logistic regression models showed that the strongest of these predictors was
death of victim. That is, offenders who committed offenses in which the victim died faced
the highest likelihood of being sentenced as an adult In fact, fifty-two percent of juveniles
who committed offenses in which the victim died were sentenced as adults. In this respect,
one could make the argument that there is a degree of consistency in punishment for those
who commit homicides. However, the same degree of consistency does not occur with
respect to other offenses. For example, only 15% of armed robberies, 33% of CSC offenses,
and 33% of assaults result in adult sentences. Thus, the disparity in punishment between
those sentenced as adults for these offenses compared to those who are retained in the
juvenile court is indicative of arbitrary processes that still operate at some level in the court
system.

Commensurability is premised upon the notion that punishment should fit the crime.
That is, the punishment that is meted out should be proportionate in nature to the damage
caused by the crime. Commensmability also relies upon legal factors as determinants of the
appropriateness of punishment. To illustrate this point, consider table 14 which summarizes
various offense categories and the prurishments meted out for them. One can clearly see that
the harshest punishment was reserved for offenders who committed homicide offenses.
Given that homicide is the most serious offense under the penal code, the punishments for
this offense do reflect a degree of commensurability that is unseen in the other offense

categories.

156

Table 14

Summary Table of Offenses and Dispositions

 

 

 

General Offense Category
Disposition Homicide Assault CSC Robbery Carjacking FirearmsDrugs
DSS/FIA 84 87 41 137 28 4 1
Probation 1 3 5 0 0 0 0
Time served 0 1 0 0 0 0 0
Boot camp 0 1 0 l 0 0 O
6 mon to 10 yrs 1 9 0 13 0 0 0
11 yrs to 19 yrs 14 7 2 6 0 0 0
20 yrs to 29 yrs 18 10 2 2 2 0 O
30 yrs to 50 yrs 22 5 7 l 0 0 0
more than 50 yrs 8 2 1 0 0 0 0
Life 27 0 O 1 0 0 1
Totals 175 125 58 161 30 4 2

 

From the results of this study, death of victim does seem to be the strongest of
predictor of waiver. When the other legal factors are considered, one may indeed conclude
that the “Principle of Offense” is observed by prosecutors and even some judges. Still, one
cannot overlook the fact that the “Principle of Offense” holds true for the prosecutor’s
office. Some of the judges do not seem to be bound by this philosophy. Instead, some still
seem to prefer an individualized style of justice or what Matza refers to as “kadi

justice”(1964, p. 114-115). Specifically, Judge #3, whose dispositions seems to reflect a

 

 

157
rehabilitation orientation, appears to have a philosophy that is closely akin to individualized

justice. However, the true nature of this philosophy cannot be explored with this data.

Limitations:

There are four primary limitations of this study. First, the data was collected from
only one county in Michigan. Even though waiver to adult court in this county account for
approximately 52% of the state total, the generalizations that from can be drawn from the
results are still primarily limited to that geographical area. That is, legal and court processes
that occur in this county may not be representative of patterns that occur in other counties
in Michigan or other states”.

Second, the findings may be limited by the fact that there was no comparison group.
That is, this study only examined juvenile offenders who were waived. It may have been
more informative to examine the differences that may have existed between offenders who

were waived and a comparable group of offenders that the prosecutor declined to prosecute

 

17

The need for comparative research on prosecutorial waiver has also been underscored by Howell (1997). He
makes the observation that definitive answers cannot be obtained from research conducted in only one
jurisdiction. Further, he notes that

studies conducted in only one state do not provide an adequate basis for drawing conclusions
regarding the efficacy of prosecutorial direct file (or any other transfer method). Rather, these
results suggest the need to study the results of prosecutorial direct file in other jurisdictions,
for the purpose of comparison. (1997:102)

In a manner of speaking, the waiver process in one jurisdiction is really a snapshot of what may be occurring
atonlyonepointintimeandmaytrulynotbeindieativeofhowprosecutorialwaiveroperatesacrossstate
lines. The political culture, or even more intangible factors, may affect the implementation and operation of
this particular waiver mechanism.

 

158

as adults. In this manner, one would be able to determine whether differences among the
offenders in terms of the current offense and prior offense history are really important
predictors of waiver to adult court as suggested by the research literature. Future research
on this topic should endeavor to develop appropriate comparison groups to ensure: (I) the
possibility of selective prosecution (racial bias) as a predictor of waiver is ruled out and (2)
a better understanding of the screening process and threshold requirements used by
prosecutors for selection of cases for prosecution”.

Another limitation of this study concerns the lack of information about judges and
their justice philosophies. This study began with the expectation that the judges involved
with waiver cases could provide insight into their decision making processes. That is, it was
hoped that the judges would provide information about the factors that they believe are
important in waiver decisions and also provide information about their justice philosophy
given the key role that they play in determining the fate of waived juvenile offenders.
Unfortunately, a very poor response rate from the judges severely limited any useful
information that could be obtained pertinent to this issue 7 of 32 judges responded to the

survey). It would be a worthwhile endeavor for firture research to continue to pursue inquiry

 

18

Fagan and Deschenes (1990) call attention to a similar problem. They note that selection bias has been
pervasive in the research on waiver and it can be traced to the population fi'om which the samples are drawn.
And the lack of controls which adequately account for the seriousness of current and past offenses (p.328).
In addition, they note that the samples used in waiver research sufl‘er fi'om a “channeling efl’ect” wherein
researchers rely on juvenile offenders w “... were purposively channeled from juvenile court to adult
jurisdictions...” (19902328)

 

159

into the judges’ role in the waiver sentencing process especially since findings from this
research suggest a “judge effect.” That is, offenders who appear before certain judges
experience a greater likelihood of being sentenced as adults than offenders who appear
before other judges. Only closer examination of the judges themselves will answer questions
related to this issue.

A final limitation of this study concerns missing data. Though the level of
information gather from records maintained by the prosecutor’s office juvenile court, and
FIA was good in many respects, there was still a problem with missing data for some of the
variables. In some cases, information was missing from 14% to 22% of the cases. Missing
data of this magnitude can bias the results and make any conclusions tentative. Part of the
problem can be attributed to the manner in which the information was collected by the
agencies. Over the nine year time span for this study, the data collection instruments used
by these agencies changed As these changes occurred, certain pieces of information was
no longer collected or was collected in a different manner. As such, it became difficult to
disentangle some of the information fiom the pertinent records. Maxfield and Babbie’s
(1995) admonition that the goals of agencies may not coincide with those of the researcher
was especially pertinent here given that some of the agencies simply did not collect
information on some of the variables that the researcher believed to be influential in the
waiver decision making process. Any future research endeavors of this type would be well

suited to use multiple sources of information as a means of offsetting possible shortcomings

160

in one agency’s records.

Discussion

This study attempted to answer some of the questions about prosecutorial waiver
that, to date, remain unaddressed because of the sparse nature of research in this area. While
a few studies have examined prosecutorial waiver at the state level (see Gillepsie and
Norman, 1984; Bishop and Frazier, 1991; Bishop, Frazier, Lanza—Kaduce, and Winner,
1996), there are no national studies which have examined this issue in great detail. This
study, while not national in scope, does make a contribution to the research in that it
confirms prior research that suggests that legal factors, the “Principle of Offense,” guide the
decision of prosecutors to waive juvenile offenders to adult court.

This research found that legal offense and legal-statutory factors such as age, number
of charges, death of victim, and recommendation are very influential in the waiver decision
making process. For example, this research found that juvenile offenders who are sixteen
or seventeen years of age face a higher likelihood of waiver and sentencing as adults than
juvenile offenders who are fifteen years of age. As previously pointed out, sixteen and
seventeen year old youth are two times more likely than fifteen year old youth to be waived
and sentenced as adults. Thus, it appears that prosecutorial waiver is primarily targeted at
offenders who are approaching the jurisdictional age limit of the juvenile court.

One implication of this finding concerns the current trend among states to reduce the

 

161

age at which juveniles can be prosecuted as adults. In the last five years, several states have
lowered the jurisdictional age for prosecution as adults. Michigan, for example, lowered its
jurisdictional age limit from fifteen to fourteen in 1997. In a very informative commentary
on research on waiver, F eld (1987) pointed out a plethora of changes that were being
undertaken in numerous states relative to jurisdictional age requirements and offenses
necessary to trigger waiver. More recently, Fritsch and Hemmens (1995) reviewed changes
in waiver laws and noted that as many as 22 states modified the age at which juveniles could
be prosecuted as adults. In all cases, the jurisdictional age was changed to allow younger
offenders to be tried as adults. Montana, for example, modified it waiver law to allow
children as young as twelve to be prosecuted as adults”.

Though the current age in Michigan has been set at fifteen, this research showed that
of the 207 waived youth in the sample, only 44 were sentenced as adults. However, 125
offenders who were sixteen years old (n= 349) and 6 offenders who were seventeen years
old youth (n= 16) were similarly sentenced as adults. Once can clearly see that it is older
youths who are primarily sentenced as adults. As a result, one may question why the

jurisdictional age for prosecution is continually lowered. Ifthe answer is to ensure that all

 

19

In one of the first commentaries on age as a factor pertinent to the prosecutorial waiver decision, Mylniec
(1976) noted that some states had no age requirements at all. For instance, he pointed out that no age
requirements existed in Indiana and Pennsylvania (p.35). He also called attention to the fact that many states
enacted age requirements that were linked to certain felony offenses. For example, he noted that in
Delaware, a juvenile offender must be at least 16 years of age to be prosecuted for felony offenses other than
murder, rape, or kidnaping (1976:36).

 

162

serious and violent juvenile offenders are punished commensurate to the crimes that they
commit, then, lowering the jurisdictional age is without merit. If, however, the purpose is
to hold juveniles accountable for their actions, then, prosecuting such youths is a valid way
to set boundaries for impermissible conduct. That is, the “process is the punishment.”

One other very important finding concerns the influence of the judge. This research
found there was a “judge effect.” That is, juvenile offenders were more likely to be
sentenced as adults depending on the judge who heard the case. This finding is interesting
for several reasons. First, the goal of prosecutorial waiver was to remove discretion, albeit
not total removal, from judges so that their decisions would be consistent, fair, and based
only on the facts of the case. This goal does not seem to have been met in the county studied
in this research Though legal factors bring the case before the judges, subjectivity still seem
to temper how these legal facts are interpreted. Podkopacz (1996) observed a “judge effect”
with respect to the request for reports and evaluations in her dissertation research. She found
that

Judge #1 requested additional services to add to his confidence to retain a

youth whereas the other judges requested services to bolster their confidence

to refer a youth. When Judge #1 requested these additional services he retain-

ed a higher percentage of youth than when he did not request the services,

while the other judges as a group retained youth at a higher percentage when

they did not request additional reports. These findings again point to the
obvious difference in judicial philosophy. (p. 104)

A similar pattern was discerned among the judges in this study. Judge #3 sentenced

163

waived juveniles as adults at a much lower rate than his contemporaries. In addition, though
Judge #3 singularly handled one-third of the waiver cases, he sentenced 86% of the waived
youth as juveniles. This finding suggests that the justice philosophy of Judge C is very
different from that of either Judges A or Judges B.

Second, this finding suggests that there still exists tension between judges and the
goals espoused by prosecutorial waiver. Whereas the chief goal of prosecutorial waiver
seems to be primarily punishment, the goals of some of the judges are treatment and
rehabilitation. That such tension exists is not surprising given the ongoing debate between
supporters of abolition of the juvenile court and those who support the goals and ideals of
the court. Scholars such as Braithewaite and Shore (1981), Dawson (1990), Federle (1990),
Ainsworth (1991), and Feld (1997) have all commented on abolition of the juvenile court.
They cite numerous factors inclusive of: (1) the juvenile court punishes in the name of
treatment (see Braithewaite and Shore, 1981), (2) children of today’s society were not
envisioned when the j uvenile court was originally conceptualized (Ainsworth, 1991 :40), and
(3) all children accused of violating the law will be guaranteed the same constitutional and

statutory protections given to adults (Federle, 1990:49)”.

 

20

Dawson (1990) notes that thee are two arguments in favor of abolition of the juvenile court. First, he
suggests that there would be resource savings in terms of tighter integration of services and reduction in
duplicating services (p.142). Second, he suggests that “fiictional costs” would be reduced in that there
would no longer be costs attached to the transfer process. He writes that

the results of a transfer decision is merely to place the case in criminal court. It is not a trial.
All of the trail and pretrial steps in the criminal court remain yet to be taken. A merger of the
systenswouldtotaflyelinfinatetheneedforafiansfermecMsmofanyldnd. Theresource

164

On the other side of this debate are those supporters of the juvenile court who believe
in its philosophy and usefulness. Catherine Guttman (1995), for example, believes that the
frenzy generated by get-tough policies have drowned out the voices of those who need help
the most, the juveniles themselves. She notes that waiver or transfer is ill-conceived and
inappropriate for the vast majority of j uvenile offenders. Moreover, she observes that

those who seek to abolish the juvenile justice system ignore the realities

that children face. Children today are not radically different than they were

a century ago. Rather, society itself had changed...

The principle of individual treatment guided the evolution of the juvenile

justice system. A cogent policy for treating and preventing juvenile crime

must begin by listening to the stories of children. The juvenile system is

not only capable of handling serious juvenile cases, from a policy stand-

point it must do so. Only the juvenile justice system offers prospects for

rehabilitating youths and reintegrating them into society. (p.515-516)

In the spirit of Guttman, one judge in this study in particular seems closely aligned
with the phrase “solicitous care of the juvenile court.” That is, Judge C seems to have a
closely held belief that waived youths can still be helped by the juvenile court if the proper
resources and treatments can be delivered to them. Such a belief is contrary to the precepts

of prosecutorial waiver“.

 

savings could be substantial. (19902143; also see Burke, 1995:1028)
Irrespective of these arguments, Dawson (1990) still indicates that, on balance, the juvenile court should not
be abolished. The losses attached to such a move would greatly outweigh any potential gains.

21
In fact, the disparity in sentencing rates amongjudges may confirm a point made by Feld (1989) when he
suggested that the individual philosophies of judges may play a greater role as a determinate of waiver than
the offense itself. These data fi'om this research showed that the justice philosophy of Judge C was clearly at
oddswiththoseofJudgesAandB. Thus, itmay notbeso surprisingthatJudgeCwaived fewerjuvenile
offenders than any of the other judges.

165

Further exploration of the beliefs of j udges and their justice philosophy could not be
undertaken in this study due to the high level non-response to the survey. Nonetheless, it
would be a worthwhile endeavor for future research to continue to explore this area of
inquiry. In particular it would be useful if future research could determine if judges’ belief
systems and philosophies affect the disposition of cases before them.

Taken as a whole, prosecutorial waiver does not seem to have had the impact that
was envisioned by the legislators. First, only approximately one-third of juveniles who are
waived are actually sentenced as adults. Second, though more than half of offenders who
commit homicide-related offenses are sentenced as adults, other offenders who commit
felonies such as robbery CSC offenses (criminal sexual conduct), and carjacking fare much
better. That is, waived juvenile offenders who commit these offenses are sentenced as adults
at much lower rates (15% for robbery and 33% for CSC offenses). These findings are not
suggestive that more vigorous prosecution of juveniles offenders would solve the crime
problem, however, they point to a need to reevaluate the purpose behind waiver itself given
that the munber of offenders who are actually waived and sentenced as adults is so small.
Part of any such reevaluation requires that one address the goals of prosecutorial waiver
(see Frazier, 1991:80-81).

Fourteen states and the District of Columbia currently use prosecutorial waiver. As
Appendix 4 points out, there are remarkable similarities among the states that use

prosecutorial waiver. For example, the majority of states using this waiver mechanism have

166

established a minimum age of fourteen (14) for criminal prosecution as an adult. This cutoff
seems to be in line with studies that suggest that children cannot form the requisite criminal
intent necessary under criminal law (see Fox, 1970; McCarthy, 1977; Walkover, 1984).
Appendix 4 also shows that several states allow criminal prosecution before the child attains
the age of fourteen (14). In fact, one state allows prosecution to commence at age 10 (South
Dakota) and another has no age restriction at all (Nebraska). One could suggest that states
with such lenient age requirements have completely removed the idea of adolescence or
youth fi'om consideration as a mitigating factor in prosecutions.

Another area of consistency among the states using prosecutorial waiver is in the use
of specific criteria (factors) to be considered in arriving at the waiver decision. All of the
states, in some form, provide for consideration of the following factors: (1) nature of
offense, (2) prior record of offending, (3) mental and physical maturity, (4) prospects for
rehabilitation, and (5) protection and safety of the community. What is most striking is the
fact that no one individual factor is given supremacy over the others. They must all be used
and construed in such a way that a complete picture is formed of the youth For the most
part, the weight given to these criteria (factors) rests within the discretionary domain of the
judge. It should be noted that it is here that tensions between judges and prosecutors maybe
exacerbated given that some judges may choose to emphasize prospects for rehabilitation
and mental and physical maturity over more pertinent legal factors. It seems that competing

goals are built into the waiver statutes. For example Alabama, Arkansas, Michigan, and

167

Utah grant judges wide latitude in how much weight they assign to the factors delineated in
the statute. While the judges do not substitute their judgment for that of the prosecutors,
there are few constraints which prevent them from reaching conclusions that may be at odds
with case presented by the prosecution.

It is a little troubling though that concepts as innocuous and vague as (l) demeanor,
(2) pattern of living, and (3) motivation are included among these criteria. Even more,
several states provide for “all other relevant factors”to be considered during the course of
the waiver process. Conferring such wide latitude upon the courts and prosecutors could
seriously disadvantage the juvenile’s defense. Thus, it seems that prosecutorial waiver
statutes have not decreased subjectivity but may have in fact added to it”.

Research on prosecutorial waiver, and waiver in general, could benefit from a
detailed analysis of these statutes. While there is a great deal of agreement among the states
relative to the crimes that trigger prosecutorial waiver, there is also some disagreement
concerning the emphasis that should be placed on the criteria that must be considered by
both judges and prosecutors. Not until such disagreements are resolved will one truly be able

to say that prosecutorial works as envisioned.

 

22

Though unintended, such a provision may allow extra-legal factors to be introduced into the waiver
decision making process. That is, factors which have no legal relevance, such as race of victim, may become
part of the equation used to determine whether to invoke prosecutorial waiver. One other area of consisten-
cy among states using prosecutorial waiver, and cause of possible concern, is the emphasis that is placed on
protection of the community. Several states explicitly designate the protection and interests of the commun-
ity as one of the criteria to be considered in the waiver decision (Alabama, Colorado, Georgia, Florida,
Louisiana, Maryland, Michigan, Mississippi, Nebraska, South Dakota, Wyoming).

Appendices

Appendix 1

Appendix 1

Empirical Studies Exploring the Waiver Issue

 

Researcher

Keiter

Eigen

Gillepsie and Norman

Thomas and Bilchik

Sagatun et al.

Nimick et al.

Norman and Gillepsie

Fagan et al.

Barnes and Franz

Feld

Year

 

1973

1981

1984

1985

1985

1986

1986

1987

1989

1989

Location
Cook County

Philadelphia

Utah

Florida

California

Arizona,
California
Hawaii
Kansas
Mississippi
Pennsylvania
Tennessee
Iowa
Virginia

Utah

Boston,
Detroit

Newark
Phoenix

California

Minnesota

.SalapLSLzs

67cases

63 cases

132 cases

844 cases

430 cases

2335 cases

45 cases

nl=225 cases
n2=201 cases

206 cases

436 cases

168

W

exercise of discretion

factors affecting waiver

differences in waived and

retained juveniles

frequency of waiver
use

frequency of waiver use

outcomes for waived
and retained juveniles

fiequency of waiver use

effect of policy change

effect of race on
waiver decision

effects of legal and
extra-legal variables
on waiver decision
juveniles tried as adults

legal and extra-legal
factors on waiver

Method
Desc.

Desc.

Desc.

Desc.

Loglin.

Desc.

Discrim.

Regr.

Champion

Fagan and Deschenes

Fagan

*Houghtalin and Mays

*Bishop and Frazier

Frazier

‘Mays and Houghtalin

Dawson

Singer

Sanbom

Poulos and Orchowsky

Jensen and Metsger

l 989

1990

1 990

1991

1991

1991

1992

1992

1993

1 994

1994

1 994

Tennessee,
Virginia
Mississippi
Boston
Detroit
Newark
Phoenix
Boston
Memphis
Newark
Detroit
Phoenix

New Mexico

Florida

Florida

New Mexico

Texas

New York

Northeast

Virginia

Montana
Wyoming
Idaho

169

2818 cases

201 cases

201 cases

49 cases

583 cases

20 judicial

circuits

49cases

1 12 cases

103 cases

100 cases

364 cases

types of punishments
imposed, frequency of
of waiver use

criteria that guide
waiver decision

detemrinants of waiver

outcomes of
juveniles tried as adults

waiver trends

identification and
description of factors
that influence direct
file

outcomes for juveniles
tried as adults

influence of Kent

criteria on waiver decision

legal and extra-legal
factors on waiver

perspectives on waiver
and the manner, reason

legal and extra-legal
factors affecting waiver

deterrent effect of
Idaho legislative
statute

Desc.

Desc.

Desc.
lntvw.

Desc.

Desc.

Desc.

Logistic

lntvw.

Logistic

Tim e -
series

170

Lee 1994 Arizona (Mari- 567 cases
copa County)
Stalans and Henry 1994 Georgia 805 cases
Podkopacz and Feld 1995 Minnesota 330 cases
Podkopacz and Feld 1996 Minnesota 330 cases
*Bishop, Frazier, Lanza- 1996 Florida 2378 cases
Kaduce, and \aner

* denotes research studies which examined prosecutorial waiver

factors that determine Logistic
waiver

identification of lntvw.
public preferences and
legislative waiver

identification of Multiple/
offender/offense variables Logistic
influencing transfer Rgm
determinants of the Logistic

waiver decision

effect of waiver on Ms
recidivism Test

 

Appendix 2

Appendix 2

Strengths and Weakness of' Waiver Mechanisms

Legislative Waiver:

Strengths- constrains discretion
improves accountability
reduces the punishment gap
confers automatic adulthood

Weaknesses- signals a repudiation of juvenile court phi1050phy
denies juveniles rehabilitation
may not reflect policy goals of the legislature
prosecutorial overreaching/abuse
exclusion of all serious offenders fiom juvenile cornt
rather than chronic offenders
provides for only worst case scenarios

Prosecutorial Waiver:
Strengths- protection of the interests of the child and society
adds beneficial information to the proceedings
serves as an advocate for society

Weaknesses— lack of procedural safeguards
demonstrates a shift in juvenile justice policy
non-appealable decisions
political nature of the prosecutors' office
does not look at amenability issues

Judicial Waiver:
Strengths- offender-oriented
protects due process rights
permits individualized justice
Weaknesses— low incidence
lack of standards: abuse of discretion
race influences
subjectivity
ultimacy
inconsistency of tenets
unreliable prediction tools

171

Appendix 3

Appendix 3

Survey of Judges and Prosecutors
Perce tions the Juvenile Court

1. In your opinion, is the juvenile court too lenient on serious and violent juvenile
offenders? (please indicate yes or no)
Yes No

2. Should juvenile court sanctions become tougher in order to deal with serious, violent, and
chronic juvenile offenders? (please indicate yes or no)

Yes No

3. Should the juvenile court shift its focus from rehabilitation and focus more on punishment
for those juveniles who are serious, chronic, and violent offenders? (please indicate yes or
no)

Yes No

172

 

173

a. What options should be available to deal with these juvenile offenders?

Yes No

Limit the court’s jurisdiction over
certain serious, felony offenses
Adopt strict juvenile habitual offender
statutes _ _
Increase the charging authority
of prosecutors _ _
Impose mandatory minimum
sentences for felony offenses
Authorize juvenile court to impose
determinate sentences for specific
felony offenses
Authorize juvenile court to impose
longer sentences for serious, felony
offenses
Extend juvenile court jurisdiction over
serious, felony offenders to a later age
than presently allowed under law
Other:
Other:

 

 

b. What benefits do you think would be obtained from adopting the strategies
suggested in question 3a?

Yes No

Increased deterrence

Protection of community welfare/safety
Responsibility/Accountability for actions
Reduction in recidivism

Reduction of juvenile cornt case loads
Save scare juvenile court resources
Other:

Other:

 

 

174

0. Would abolition of the juvenile court achieve the same objectives of making
juvenile offenders more responsible/accountable for their actions?

Yes No

Next, I would like to ask a few questions about the different types of waiver mechanisms-
judlcial and prosecutorial- that are available in your jurisdiction

4. How many waiver motions are typically made during a year’s time in your office/court?

Mutorigl (discretionary) waiver motions Judicial (traditional) waiver mom
1996
1995
1994
1993

1992

175

5. How many juvenile offenders are typically waived during a year's time by your
office/court? (if unsure please give an estimate)

Prosecutorial (discretionary) waiver Judicial (traditional) waiver
1996
1995
1994
1993
1992

6. Approximately how many juvenile offenders were judicially waived (traditional) by your
court or office during the two years which preceded the change in the waiver provisions in
1988?. That is, how many juveniles were waived during this period before the power of
prosecutors was expanded to make waiver decisions? (If an exact number is not known,
please give an estimate)

1987 1986

Criteria for Waiver Decisions

7. Should there be a minimum age restriction on who could be waived to criminal court?
(please indicate yes or no)
Yes No

If yes, what should this minimum age be? Why?

176

8. How would you rate the following factors in terms of their significance in the waiver
decision process.

(1) (2) (3) (4) (5)
Very Important Somewhat Unsure Little Not at all
Important Importance Imports
of

Seriousness of offense
Chronological age

Mental maturity/
Sophistication _ __ __

Mental Health
Prior offense history
Safety of community

Use of gtm in commission
of the crime

Brutality of offense
Adult/Juvenile Accomplices
Treatment resources available—
Prior commitments
Amenability to treatment _ _ _ __ __

Memberofagang

Pattern of living

9. What kind of predictors does your office/court use when trying to assess the
“dangerousness” of a juvenile offender? Please check the appropriate response by indicating

“yes” or “no”

Predictors of dangerousness

degree of harmfulness
of the conduct

extent of the offender’s
culpability

known history of violence
referral/adjudication for four

or more offenses

known history of fighting

behavior

poor institutional adjustment

sociopathy

Yes

No

10. What effect/impact does the juvenile offender’s prior record have on disposition
decisions in your office/court? Indicate your level of agreement or disagreement with the

 

 

items listed below.
(1) (2) (3) (4) (5)
Strongly Agree Not Sure Disagree Strongly
Agree Disagree
No effect

Likelihood of dismissal
of charges

Chances for bail/
pro-trail detention

Chances for probation

Chances for plea
bargain agreements

Final sentence severity

 

178

11. Are there formal policies or guidelines that you consider when making the decision to
waive juveniles to criminal court?

Yes No

Kent criteria _
State statute/ directives
Other:
Other:

12. Are the criteria found within these policies and guidelines too restrictive?

Yes No

Why?

Treatment Issues

179

13. Please indicate your level of agreement or disagreement with the following statements:

 

 

(1) (2) (3) (4) (5)

Strongly Agree Not Sure Disagree Strongly

Agree Disagree
Rehabilitation and treatment

are necessary parts of the
juvenile justice process.

Punishment and treatment
cannot coexist within the
juvenile justice system.

Protection of the community
is more important than treatment

of juvenile offenders.

Rehabilitation of serious,

violent, and chronic offenders
cannot occur within existing

programs in the juvenile
justice system.

The attempted rehabilitation
and treatment of violent and

chronic juvenile offenders

wastes scarce juvenile court

resources.

Vrolent and chronic juvenile
offenders must be separated
from juvenile offenders who

are salvageable.

 

Treatment programs should be
specifically geared toward first

and second-time juvenile
offenders

180

There are no programs within
the juvenile justice system
that have long term effects
on juveniles’ behavior.

 

14. What should be the role of j uvenile court judges or prosecutors in assessing the treatment
needs of juvenile offenders who face the possibility of waiver to criminal court?

Yes No
Fact-finder _ __
Clinician _ _
Other:
Other:

1 5. Does the availability of treatment programs play a role in your decision to waive juvenile
offenders to criminal court? (please indicate yes or no)

Yes No

If yes, what type of treatment programs or resources do you consider when making
this decision?
Yes No

Psychological/Psychiatric

counseling services
Medical services
Substance abuse treatment
Academic/Education
Vocational/1‘ echnical
Trained personnel
Other:
Other:

181

16. Are there uniform standards or guidelines regarding treatment issues used by your
office/court as they relate to the likelihood that juvenile offenders will be waived to criminal

court?

If yes, what are these standards?

Yes

No

17. What considerations or criteria are used when trying to establish a juvenile’s
“amenability to treatment”? Please indicate your level of agreement or disagreement with
the use of the criteria indicated below when making a decision to waive a juvenile to

criminal court.

 

(1)
Strongly
Criteria Agree

(2)
Agree

(3)
Not
Sure

(4)

Disagree

(5)
Strongly

Disagree

 

Age

Mental maturity/
Sophistication

Severity of offense

Offense history

Sociopathic personality
characteristics

Family/Community
Nature of effective
behavioral controls
Nature of peer selection
Nature and quality of
coping behaviors

 

 

Character of the youth
Remorse for the offense
and for the victim
Conscious and moral
development
Malleability, or rigidigy,
of juvenile’s personal-
ity
Development of personal
responsibility for the
offense committed
Development of empathy/
ability to put oneself in the
“shoes of the victim”
Nature and quality of
problem-solving skills

Treatment prognosis
Available services

and facilities
Prior state intervention
Other:
Other:

182

 

183

18. What types of behavior (or patterns of behavior) should subject a juvenile offender to
compulsory treatment by the state? Please indicate your level of agreement or disagreement
with the use of these behaviors as listed below [note- this question refers to treatment within
FIA agencies].

 

(1) (2) (3) (4) (5)
Strongly Agree Not Sure Disagree Strongly
Behavior Agree Disagree

 

Aggressive behavior
Substance abuse (narc)
Substance abuse (alcohol)
Violent behavior (comm)
Violent behavior (school)
Repetitive criminal behavior
Mental disorders
Predatory sexual behavior
Pattern of escalating serious-

ness of crimes

 

 

 

Namre and Typ_e of Attorney Representation

19. During the last two years (1995 and 1996), for waiver proceedings initiated by your
office or court, which type of attorney (counsel) was most frequently used to represent
juvenile offenders? [please provide an estimate if an exact number is unknown]

Leg; Year

1996
Tym of Attorney
Privately retained
Court Appointed
Public Defender
Other (describe)
Other (describe)

lllllg

lllll

184

20. What should be the role of the defense attorney (counsel) in both discretionary and
traditional waiver proceedings? Please indicate your level of agreement or disagreement
with the following statements:

 

(1) (2) (3) (4) (5)
Strongly Agree Not Sure Disagree Strongly
Role of Attorney Agree Disagree

 

As an advocate, the defense
attorney must defend his/her
client’s constitutional and

legal rights . _ _ __ ——

The defense attorney is the

primry advocate for the juvenile
offender

 

In his/her capacity of interpreters
of the law for juvenile clients,
defense attorneys are well trained
and knowledgeable about pertinent
case law and statutes

 

The defense attorney is helpful
as an interpreter of law and the
meaning of court decisions

In his/her capacity as a guardian,
the defense attorney must have
regard for the best interests of the
juvenile offender

 

The defense attorney is the
protector of the legal rights
of the juvenile offender

The defense attorney acts as

a mediator between the court,
the prosecutor, and the juvenile
offender

 

The defense attorney always
vigorously defends the
juvenile client

185

In his/her role as advocate,
the defense attorney must avoid
becoming too adversarial in
court proceedings
As a negotiator, the defense

attorney must secure the co-

operation of the judge and
prosecutor in the court’s
dispositions

The defense attorney is
most helpful in the role
of negotiator __ __ __ _
In his/her role as advocate, the

defense attorney obstructs the

legitimate operations of the

court and the rehabilitation
process __
The level of advocacy provided
by defense attorneys for juvenile
clients is quite adequate

 

21. Is plea bargaining a common practice among defense attorneys (counsel) who represent
juvenile offenders in waiver cases initiated by your office or court?

Yes No

186

22. What incentives, if any, exist for defense attorneys and prosecutors to seek plea bargains
in cases involving waiver? Please indicate your level of agreement or disagreement with the
following statements.

 

( 1) (2) (3) (4) (5)
Strongly Agree Not Sure Disagree Strongly
Agree Disagree

 

Plea bargains secure
charge reductions

Plea bargains avoid
costly and time consum-
ing trials

Plea bargains offer
protection from overly
harsh sentences

Plea bargains avoid the
uncertainty associated

with jury decisions

Plea bargains protect the
interests of the state in
terms of securing punish-
ment for juveniles

Plea bargains get rid of
bad cases where evidence
and facts are insuflicient

Plea bargains ensure that
the best interests of the
juvenile are protected

 

187

a. Now that you have responded, please rate these incentives relative to their
importance in waiver decisions

 

Very Somewhat Not Sure Little Not at all
Important Important Importance Important

Plea bargains secure
charge reductions

Plea bargains avoid
costly and time consuming
trials

 

Plea bargains offer
protection from
harsh sentences

Plea bargains avoid the
uncertainty associated
with jury decisions

Plea bargains protect

the interests of the state

in terms of securing punish-
ment for juveniles

 

Plea bargains get rid
of bad cases where
evidence and facts
are insufficient

Plea bargains ensure
that the best interests
of the juvenile are
protected

 

188

23. In the last five (5) years, what percentage of waiver proceedings initiated in your office
or brought to court resulted in a plea bargain? (lfexact number is not known, please provide
an estimate)

1996__ 1995____

1994 1993 1992

24. In your opinion, are the best interests of j uvenile offenders adequately protected when
defense attorneys (counsel) seek plea bargains?

Yes No

Please explain your response:

Justice and the Court

189

25. Please indicate the extent to which you agree or disagree with the following statements

about philosophies of punishment.

 

 

(1) (2) (3) (4) (5)
Philosophy of Decision Strongly Agree Not Sure Disagree Strongly
makers Agree Disagree
Retribution is the primary

objective of waiver

Retribution is a legiti-
mate expression of the
state’s desire to punish
serious, chronic juvenile
offenders

Deterrence of serious

crime is achieved through

waiver

Waiver of juvenile ofl‘enders
to criminal court promotes

accountability

Just Deserts ensures that

 

the punishment of juvenile

offenders fits the crime

The philosophy of Just
Deserts should guide all

waiver decisions because

it focuses characteristics
of the offense rather
than characteristics of
the offender

Incapacitation of serious
and chronic ofl‘enders
ensures the safety of the
commrmity

190

A policy of selective
incapacitation was the
primary emphasis behind
the changes in the waiver
statutes in 1988

 

Rehabilitation is
secondary to the need
for punishment

Waiver of juvenile
offenders to criminal
court promotes the
idea of rehabilitation

 

 

 

 

191

26. What are the positive and negative consequences associated with using prosecutorial
(discretionary) waiver? Please indicate your level of agreement or disagreement with the following
statements.

 

(1) (2) (3) (4) (5)
Strongly Agree Not Sure Disagree Strongly
Agree Disagree

 

Prosecutorial waiver fails
to adequately consider
whether a juvenile offender
is amenable to treatment.

 

Prosecutorial waiver accurate-
ly targets violent, and chronic

juvenile offenders and thus
eliminates inconsistency

of punishment among
offenders with similar offense
histories.

 

Prosecutorial waiver lacks
adequate procedural safe-
guards.
Prosecutorial waiver protects
the community from predatory
juvenile offenders.

Prosecutorial waiver allows
the prosecutor to express
society’s outrage over violent
crimes that are committed by
juveniles.
Information beneficial to
the juvenile offender is
often obtained from the
prosecutor’s office.

 

192

The decision to initiate
waiver proceedings is non-
appealable.

 

Prosecutorial waiver
provides unfettered charg-
ing discretion for
prosecutors.

Waiver decisions are
suspect due to the political
nature of the prosecutor’s
office.

 

Prosecutorial waiver un-
necessarily expands the
traditional function of
prosecutors.

 

27. What have been the effects of the changes in the waiver statutes in 1988 in your jurisdiction?

28. Does your office or court have a review process to ensure that appropriate cases are considered
for prosecutorial (discretionary) waiver motions?

Yes No

193

If yes, please describe this review process:

0 'c In ' n:

Thank you for your participation in this study. Before ending. I would like to ask a few
questions about your background. Please provide answers to these questions as fully as

possible.
Name:

Title:

How long have you held this position?

What is the district or jurisdiction for which you are responsible?

Appendix 4

 

Appendix 4

 

 

States Using Prosecutorial Waiver
State and Juvenile Court Mnr‘murn Age Offenses which Criteria for Evidence
Stature C iran'on Jurisdiction for Adult Trigger Adult Waiver Decision Standard
Prosecution Prosecution

Alabama 1 8 l 4 1. Capital ofl'ense 1. Nature of present Clear
Alabama Code 2. Class A felony alleged ofjense and
Annotated (l 995) 3. Felony which has 2. Extent and nature Convincing
§ I 2-15-2 as an element the use of child '3 prior delin-
§12-15-34 of a deadly weapon quency record
§12-15-34. l 4. Felony which has 3. Nature of past treatment

as an element the eflorts and the nature of the

causing of death or child 's response to such

serious physical injury eflorts

5. Felony which has 4. Demeanor

an element a dangerous 5. Extent and nature of the

instrument against any child ’s physical and mental

person who is: maturity

A. law enforcement 6. The interests of the com-

oficer or official munity and of the child requiring

B. correctional ofiicer that the child be placed under

or official legal restraint or discipline

C. parole/probation oflicer

or official

D. juvenile court pro-
bation officer or

 

official

E. district attorney or Weight given to C merit;
other prosecuting officer May use own discretion
or oflicr‘al in assigning appropriate
F. judge or other weight to the six factors
judicial official

G. court officer or

official

H. grand juror. juror.
or witness in any legal
proceeding

1. teacher, principal. or
employee of the public
education system

6. T rafl‘ickr‘ng in drugs

194

Arkansas 1 8 l 4
Arkansas Statutes
Annotated ( I 995)

§ 9-27-318

C onditionals:
Must be at least fourteen yrs
old when he/she engages in
conduct that, if committed by
and adult. constitutes a felony
and who has. within the preceding
two years. three times been adjudi-
cated as a delinquent juvenile for
acts that would have constituted
a felony if they had been committed
by an adult

Colorado I 8 12
Colorado Revised
Statutes (I 99 7)

§ I6-l 1-309

§ I 8—I-I 05

§ I 9-I -2-5 I 7

§I 9-2-518

195

l . Capital murder

2. Murder I

3. Murder II

4. Kidnaping I

5. Aggravated Robbery

6. Rape

7. Battery I

8. Possession,

handgun on school
property

9. Aggravated Assault
committed with deadly
weapon

10. Battery H

l I. Aggravated Assault
I2. Terroristic Acts

I 3. Unlawfitl discharge
of firearm from vehicle

14. Any felony committed
while armed with firearm
I5. Soliciting minor to
join criminal street gang

I 6. Criminal use of pro-
hibited weapons

I 7. Felony attempt,
solicitation, or conspiracy
to commit: capital murder.
murder 1, murder 11. kid-
naping, aggravated robbery.
rape. battery I

I . Class I Felony

2. Class II Felony

3. Murder

4. Assault 1 or II

5. Kidnaping

6. Sexual Assault

7. Aggravated Robbery
8. Arson I

9. Burglary I

I 0. Escape

I I. Criminal Extortion

I. Seriousness of Clear
offi’nse and whether and
violence was employed Convincing

2. Whether the offense

is part of a repetitive
pattern of adjudicated
offenses which would

lead to the determination
that the juvenile is beyond
rehabilitation under existing
rehabilitation programs as
evidenced by past efforts

to treat and rehabilitate the
juvenile the response to such
efforts

3. Prior history. character
traits, mental maturity. and
any other factor which re-
flects upon the juvenile 's
prospects for rehabilitation

Weight given to C riterig;
Not necessary to give
equal weight to each factor

I. Seriousness of

the oflense and
whether the protection
of the community re-
quires isolation of the
juvenile beyond that
aflorded by juvenile
facilities

2. Whether the alleged
oflense was committed
in an aggressive, violent,
premeditated. or willfitl
manner

3. Whether the alleged
offense was against

 

 

196

C onditionals:
The juvenile has. within the two previous
years. been adjudicated a juvenile delinquent
for delinquent acts that constitutes a felony,
is I 6 yrs of age or older. and allegedly has
committed a crime defined by Section I8-I-105.
C.R.S.. as a Class 3felony

The juvenile is I 4 yrs of age or older and has
allegedly committed a delinquent act that
constitutes a felony, and has previously been
subject to proceedings in district court as a
result of a direct filing pursuant to this
section or a transfer pursuant to section

I 9-2-5 I 8

The juvenile is I 4 yrs of age or older and
has allegedly committed a delinquent act
that constitutes a felony. and is determined
to be a habitual juvenile offender

persons of property.
greater weight being

given to offenses against
persons

4. Maturity of the juvenile

as determined by considera-
tions of the juvenile ’s home.
environment, emotional
attitude. and pattern of

living

5. Record and prior history

6. Likelihood of rehabili-
tation by use of facilities
available to the juvenile

7. Interest of the community
in the imposition of a
punishment commensurate
with the gravity of the offense
8. Impact of the offense

on the victim

9. That the juvenile was

twice previously adjudicated
a delinquent juvenile for
delinquent acts that constitute
felonies

10. That the juvenile was
previously adjudicated a
juvenile delinquent for a
delinquent act that constitutes
a crime of violence

I I. That the juvenile was
previously committed to the
department of human services
following an adjudication for
delinquent acts that constitute
a felony

12. That the juvenile is I6 yrs
of age or older at the time of
the ojfi’nse and the present
act constitutes a crime of
violence

I 3. That the juvenile is I 6 yrs
of age or older at the time of
the ojjense and has twice
previously been adjudicated
a juvenile delinquent for
delinquent acts against property
that constitute felonies

I 4. That the juvenile used.

or possessed and threatened
the use of a deadly weapon

in the commission of a delinquent

 

 

 

Georgi!

Georgia Code
Annotated (l 994)
§ I 5-I I —5

§ I 5-I 1-3 7

Florida

Florida Statues
Annotated (I 996)
§ 39.02

§ 39.09

17

18

I3

14

197

I. Murder
2. Voluntary man-
slaughter
3. Rape
4. Aggravated Sodomy
5. Aggravated Child
Molestation
6. Aggravated Sexual
Battery
7. Armed Robbery.
if committed with
a firearm
8. Designated Felony:
A. Kidnap I
B. Arson I
C. Aggravated Assault
D. Arson II
E. Aggravated Battery
F. Robbery
G. Armed Robbery.
not involving firearm
H. Attempted Murder
1. Attempted Kidnapping
J. Carrying/Possession
of weapon
K Highjacking, motor
vehicle

I. Capital Offense
2. Felony I

3. Felony II

4. Felony III

5. Life Oflense

act

1. Needs and best
interests of the juvenile
2. Record and back-
ground of the juvenile
3. nature and circum-
stances of the oflense.
including whether any
injury involved was
inflicted by the juvenile
or another participant
4. Need for protection
of the community

5. Age and physical
condition of the victim

Weight Given to Criteria:
Speafic written findings
of fact as to each of the
elements

I. Seriousness of

alleged offense to
community and

whether the protection

of the community is

best served by transfer-
ring the child for adult
sanctions

2. Whether the alleged
offense was committed

in an aggressive. violent,
premeditated, or willful
manner

3. Whether the alleged
offense was against persons
or property. greater weight
being given to oflenses
against persons, especially
if personal injury resulted
4. Prosecutive merit of the

 

Louisiana I 7 I 4
Louisiana

Revised Statutes

Annotated (I 995)

§ 6-15 70

§ 6-1 5 71. I

§ 4-305

§ I 1-85 7

§ I I -862

198

I. Murder I

2. Murder 1]

3. Aggravated Rape

4. Aggravated Kidnap
5. Attempted Murder I
6. Attempted Murder II
7. Manslaughter

8. Armed Robbery when
committed with firearm
9. Forcible Rape

complaint
5. The desirability of trial
and disposition of the entire
offense in one court when
the child's associates in the
alleged crime are adults
or children who are to be
tried as adults who will be
or have been charged with the
crime
6. Sophistication and maturity
of the child. as determined by
consideration of his home,
environment situation. emotional
attitude. and pattern of
living
7. Record and previous
history of the child including:
A. previous contacts with
the department, other
law enforcement agencies.
and courts
B. prior periods of pro-
bation or community
control
C. prior adjudications that
the child committed a
delinquent act or
violation of law
D. prior commitments to
institutions
8. Prospects for adequate
protection of the public and
the likelihood of reasonable
rehabilitation of the child. if
he is found to have committed
the alleged offense, by use
of procedures. services. and
facilities currently available to
the court

I . Chronological age Clear

of the child and

2. Maturity of the Convincing
child, both mental

and physical

3. Nature and serious-

ness of alleged offense

to community and

whether the pro-

tection of the community

199

10. Simple Rape

I I. Kidnaping II

12. Aggravated Battery
when committed by

13. Aggravated Oral
Sexual Battery

C onditionals:
Second or subsequent aggravated
battery

Second or subsequent aggravated
battery

Second or subsequent oflense of
burglary of an inhabited dwelling

Second or subsequent felon y-

grade violation involving manufacture,
distribution, manufacture, or possession
with intent to distribute controlled
dangerous substances

Maryland I8 14 I. Abduction
Maryland Code 2. Kidnaping
Annotated ( I 995) 3. Murder

§ 3—804 4. Manslaughter

5. Mayhem/maimmg
6. Rape II

7. Robbery with
dangerous or deadly
weapon

8. Second degree
sexual offense

9. Third degree
sexual oflknse

requires transfer

4. Prior acts of delin-

quency, if any, and

their nature and seriousness
5. Past efforts at rehabili-
tation and treatment, if any,
and the child's response

6. Whether the child 's be-
havior might be related to
physical or mental problems
7. T echniques, programs. per—
sonnel, and facilities available
to the juvenile which might

be competent to deal with the
child ’s particular problems

I . Age of the child

2. Mental turd phy-
sical condition of

3. Child '3 amenability
to treatment in any
institution, facility,

or program available
to delinquents

4. Nature of the ofl’ense
and the child 's alleged
5. Public safety

Preponderance
of evidence

10. Wearing, using,
carrying. or transporting
of firearms during and

in relation to a drug
trafficking crime

1 I. C arjacking/armed
caq‘acking

I 2. Assault, intent murder
I 3. Assault, intent rape

I 4. Assault, intent robbery
I 5. Assault, intent sexual
offense in the first or second
degree

Weight Given to Criteria:
Not all five factors need be

resolved against the
juvenile in order for the
waiver to be justifiable

 

I8 I5
Michigan Compiled
Laws (I 994)
§ 712A.4
§ 764. If
Michigan Statutes
Ann0tated (I994)
§ 27.3178 (598.4)
§ 28.860 (I)
59 28.1072 (3)

200

I . Murder I

2. Murder II

3. Attempted Murder

4. Assault. intent
murder

5. Assault, intent armed
robbery

6. Armed Robbery

7. CSC I

8. Possession. manu-
facture, delivery of

650 grams or more

of a Schedule I or 2
controlled substance

9. Possession. intent

to deliver 650 grams

or more of a Schedule

I or 2 controlled substance

I . Prior record and Preponderance
character of the child, of evidence
his/her physical and
mental maturity. his/
her pattern of living
2. Seriousness of
oflense
3. Whether offense is
part of a repetitive
pattern of ojfienses
leading to the deter-
mination that:
A. not amenable to
treatment
B. despite the child '3
potential for treatment
the nature of the child 's
delinquent behavior is
likely to disrupt the re-
habilitation of other
children in the treatment
program
4. Nature of the child ’s de-
linquent behavior is likely
to render the child dangerous
if released at age 19 or 21
5. Whether the child is
more likely to be re-
habilitated by the services
and facilities available in
adult programs and pro-
cedures rather than in
juvenile programs and
procedures
6. Whether it is in the
best interests of the public
welfare and protection of
public security that the child
stand trial as an adult

Weight Given to Criterit_1_:_
Give each weight as
appropriatte to the circum-
stances

Mississippi I8 I 3
Mississippi Code

Annotated ( I 993)

§ 4 3-21 -I5 I

§ 43-21-15 7

201

All Felonies

I. Whether or not Clear
alleged offense con- and

stituted a substantial Convincing
danger to the public

2. Seriousness of

alleged offi’nse

3. Whether or not

transfer is required to
protect the community

4. Whether or not the
alleged ofiense was
committed in an aggres-
sive. violent, premeditated.
or willfitl manner

5. Whether the alleged
oflense was against persons
or property. greater weight
being given to oflenses
against persons, especially
if personal injury resulted

6. Sophistication, maturity,
and educational background
7. Child '3 home situation,
emotional condition, and
lifestyle

8. History of the child, in-
cluding experience with the
juvenile justice system, other
courts, probation, commit-
ments to juvenile institutions
or other placements

9. Whether or not the child
can be retained and rehabili—
tated in the juvenile
justice system long enough
for effective treatment

I 0. Dispositional resources
available to juvenile justice
system

II . Dispositional resources
available to the adult cor-
rectional system for the child
if treated as an adult

12. Any other factors
deemed relevant by the
youth court

Weight Given to Critefl'g
Recital of findings of
probable cause and the
facts and reasons under-
lying the youth court

 

 

202
decision
Montana 18 I 2 I. Sexual intercourse I. Seriousness of Preponderance
Montana Code without consent the offense and the of
Annotated (I 99 7) 2. Deliberate Homicide protection of the Evidence
§ 4 I -5-206 3. Mitigated Deliberate community require
Homicide treatment of the
4. Attempt of or youth beyond that
accountability for either afforded by juvenile
deliberate or mitigated facilities
deliberate homicide 2. Alleged oflense was
5. Negligent Homicide committed in an ag-
6. Arson gressive, violent. or
7. Aggravated or felon y premeditated manner
8. Robbery 3. Sophistication and
9. Burglary or maturity of the youth
Aggravated Burglary determined by considera-
I 0. Aggravated Kidnap tion of the youth '3 home.
I I . Possession of environmental situation,
Explosives and emotional attitude and
12. Criminal Sale pattern of living
of dangerous drugs 4. Record and previous
I 3. Criminal production history of the youth, including
or manufacture of dan- previous contacts with the
gerous drugs youth court, law enforcement
I 4. Use of threat to agencies, youth courts in other
coerce criminal street jurisdictions, prior periods of
gang membership probation, and prior commit-
ments to juvenile institutions
Weight Given to Criteria:
Written statement by the
court of the evidence
relied on and the reason
for the transfer
Nebraska 18 None All Felonies I . Type of treatment Beyond
Revised Statutes such juvenile would a
of Nebraska (I 993) most likely be amen- Reasonable
§ 43-24 7 able to Doubt
§ 43—2 79 2. Whether there is
§ 43-261 evidence that the
§ 43-276 alleged oflense in-

cluded violence or
was committed in an
aggressive or pre-
meditated manner
3. Motivation for the

 

203

commission of the

offense

4. Age of the juvenile

and ages and circumstances

of any others involved in

the offense

5. Previous history of

the juvenile, including

whether her’she had been
convicted of an y pre-

vious offenses or ad-
judicated in juvenile

court and. ifso, whether

such offenses were crimes
committed against the person
or relating to property, and
other previous history of
antisocial behavior, if any,
including any patterns of
physical violence

6. Sophistication and

maturity of the juvenile as
determined by consideration

of his or her home, school
activities, emotional attitude
and desire to be treated as

an adult, pattern of living,

and whether he/she has had
previous contact with law
enforcement agencies and
courts

7. Whether there are facilities
particularly available to the
juvenile court for treatment
and rehabilitation of the juvenile
8. Whether the best interests

of the juvenile and the security
of the public may require that
the juvenile continue in custody
or supervision for a period ex-
tending beyond his/her majority
and. if so, the available alternatives
best suited to this purpose

9. Such other matters as the
county attorney deems relevant to
his/her decision

Weight Given to Criteria:
Court need not resolve
every factor against the
juvenile

Wyoming 18 I 3
Wyoming Statutes

Annotated (I 99 7)
§ 1 4-6-203
§ I 4-6-23 7
§ I 4-6-229
§ 14-6-225

205

7. Aggravated Sexual
Assault

8. Discharge of firearm
from vehicle

9. Attempted Aggravated
Murder

I 0. Attempted Murder

1 I. An oflense including
the use of a dangerous
weapon which would be
a felony if committed by
an adult

All Felonies

the minor in concert with

two or more persons under
circumstances which would
subject the minor to enhanced
penalties were he an adult

3. Whether the alleged offense
was committed in an aggressive.
violent, premeditated, or willful
manner

4. Whether the alleged ofiense
was against persons or property
greater weight being given to
ojjenses against persons

5. Maturity of the minor as
determined by considerations
of his home, environment,
emotional attitude, and pattern
of living

6. Record and previous history
7. Likelihood of rehabilitation
of the minor by use of facilities
available to the juvenile court
8. Desirability of trial and dis-
position of the entire offense in
one court when the minor 's
associates are adults who will
be charged with the crime in
the district court

9. Whether the minor used a
firearm in the commission of
an offense

10. Whether the minor possessed
a dangerous weapon on or about
school premises

Weight Given to Critei'a;
Amount of weight given to
each of the factors listed is
discretionary with the

court
I . Seriousness of the Beyond
alleged offense to the a
community and whether Reason-
the protection of the able
community required Doubt

waiver

2. Whether the alleged
offense was committed
in an aggressive, violent.
premeditated, or willful

I .

 

 

206

manner
3. Whether the alleged

oflense was against persons

or property, greater weight
being given to persons
especially if personal

injury resulted

4. Desirability of trial and
disposition of the entire
offense in one court when

the juvenile ’s associates are
adults who will be charged
with a crime

5. Sophistication and maturity
of the juvenile as determined
by consideration of his home,
environmental situation.
emotional attitude, and pattern
of living

6. Record and previous history
of the juvenile including previous
contacts with law enforcement
agencies, juvenile courts, and
other jurisdictions, prior periods
of probation to this court or
prior commitments to juvenile
institutions

8. Prospects for adequate
protection of the public and
the likelihood of reasonable
rehabilitation of the juvenile

Weight Given to Criteriga;
Court must state for the
record the basis for the
decision

List of References

 

 

List of References

Agresti, Alan and Barbara Finlay. 1986. Statistin Methms for the §ocial Sciengs. San
Francisco, CA: Dellen Publishing.

Aichhorn, August. 1933. Wamard Youth. New York, NY: Viking Press.

Ainsworth, Janet. 1991. Re-Imagining Childhood and Reconstructing the Legal Order. The Case
for Abolishing the Juvenile Court, 69 N.C.L. Rev. 1083.

Aldrich, John H. and Forrest D. Nelson. 1984. Linear Probability, Qgit, am Probit Mgels.
Newbury Park, CA: Sage Publications.

Allen, Francis. 1964. The Bordgrlangl of Qrimigal 193%. Chicago: The University of
Chicago Press.

Bachman, Ronet and Raymond Paternoster. 1997. Statistical Memgfls for Qg'minolgg
W. New York: McGraw-Hill.

Barnes, Carole W. and Randal S. Franz. 1989. "Questionably Adult: Determinants and
Effects of the Juvenile Waiver Decisions." W 6: 117-135.

Barnum, Richard. 1987. The Development of Responsibility: Implications for Juvenile
Justice. In Francis Hartmann (ed, ), Wis, vol.II (pp.67-79).
New York: Springer- Verlag.

Bearrows, Thomas, Jeffrey Bleich, and Michael Oshima. 1987. The Contemporary Mandate.
In Mark Harrison Moore (ed.), Fro hi1 en i ize ' Th t for venil
lgtice, 1, (pp.49-95). New York: Springer- Verlag.

Bedau, Hugo Adam. 1977. Concessions to Retribution in Punishment. In J. B. Cederblom
and William Blizek (eds), lgtice and Punishment (pp.51-74). Cambridge, MA:

207

 

 

208

Ballinger Publishing Company.

Bentham, Jeremy. 1980. The Utilitarian Theory of Punishment. In J oel Feinberg and Hyman
Gross (eds. ), W (pp. 545-576). Belmont, CA: Wadsworth Publishing

Company.

Bishop, Donna M. and Charles E. Frazier. 1991. "Transfer of Juveniles to Criminal
Court: A Case Study and Analysis of Prosecutorial Waiver." 5 MM

of Law, Emics, and Pfllig Policy 281.

Bishop, Donna, Charles Frazier, Ionn Lanza-Kaduce, and Lawrence Winner. 1996. “The
Transfer of Juveniles to Criminal Court: Does it Make a Difference?” QM

Delingggngy, 42: 171-191.

Blasko, Marie L. 1985. Saving the Child: Rejuvenating a Dying Right to Rehabilitation.
W 11123-159

Blustein, Jeffrey. 1983. On the Doctrine of Parens Patriae: Fiduciary Obligations and State
Power. WEE; 2: 39-47.

Bove, Catherine M. 1991. "The Child-Adult: Michigan Waiver Law."3 W
Miss! 1071.

Boyce, Allison. 1994. “Choosing the Forum: Prosecutorial Discretion and Walker v. State.”
46 W 985.

Braithwaite, John and Allen Shore. 1981. "Treatment Rhetoric Versus the Waiver Decision. "
MW 72 1867-1891

Brooks, Susan E. 1995. Juvenile Injustice: The Ban on Jury Trials for Juveniles in the

District of Columbia MW, 33: 875-909.

Bureau of Juvenile Justice, Delinquency Policy and Prevention Division 1990. An Umated
WWW/gs. Office of Children and Youth Services: 1-24.

Burgh, Richard. 1987. Guilt, Punishment, and Desert. In Ferdinand Schoeman (ed.),
Re H iili L12.” -0. ' Em i :Ne E a sin M l _' “1'3
(pp.316-337). Cambridge: Cambridge University Press.

 

 

209

Burke, Michael K. 1995. This Old Court: Abolitionists Once Again Line Up the Wrecking
Ball on the Juvenile Court When All It Needs is A Few Minor Alterations. 26

University of Teledo Law Review 1027.

Canty, Raymond. 1996. Young Boys Incomrated: TheAutobiogmphy of Butch Jones.
Detroit, MI: H. Publications.

 

Champ1on, DeanJ 1989. "Teenage Felons and Waiver Hearings. Some Trends, 1980-1988. "
Qri meandmlingyen n,ey 35:577-585.

Champion, Dean J. and Larry Mays. 1991. Tmferring Juveniles to Criminal Cog;
New York: Praeger.

Christie, Nils. 1981. Limits te Peig. Oxford: Martin Robertson & Company. Ltd.

Cintron, Lisa A 1996. Rehabilitating the Juvenile Court System: Limiting Juvenile
Transfer to Adult Criminal Court. 90 Northwestern Univegsity Law Review 1254.

Clarke, Elizabeth E. 1996. “A Case for Reinventing Juvenile Transfer: The Record of
Transfer of J uvenile Offenders to Criminal Court in Cook County, Illinois.” weenie

and Wat, 47:3-21.

Conrad, John P.1981."Crime and the Child," pp. 179-205 1n J. Hall et al. (eds. ) Mm
1 - z- - .,Columbus OH:

 

Academy for Contemporary Problems.

Davis, Michael. 1985. Just Deserts for Recidivists. 911mm! Jesjice Ethies, 4: 29-49.

Davis, Samuel M. 1981. "Legal and Procedural Issues Related to the Waiver Process,"

pp 227-263 inJi Hall et al (eds )Wflw
Trainin .Re 11 P 11 .,Columbus OH: Academy for Contemporary

Problems.

Dawson, Robert O. 1990. “The Future of Juvenile Justice: Is It Time to Abolish the
System?” WW 81: 136-155-

Dawson, Robert O. 1992. "An Empirical Study of Kent Style Juvenile Transfers to Criminal
Court " 23 WM 975.

210

DeMaris, Alfred. 1992. Lo 'tM lin : ' lA 1i ti n .Newbury Park, CA: Sage
Publications.

Duranczyk, Richard P., Thomas M. Harp, and John R. Mincock. 1988. "New Juvenile
Waiver Legislation." Crimieaj Defense Neweleger, 12: 1-6.

Eigen, Joel P. 1997. The Bor rlan of J nil i 6' Th W iver Pr ss in
Philadelphia. (Doctoral Dissertation, University ofPennsylvania, 1977). Dissertation
Abstracts International, 6957, A1 1/38.

Eigen, Joel P. 1981. "Punishing Youth Homicide Offenders in Philadelphia." The Jew!
ef Crimiml Law and Criminelegy, 72: 1072-1093.

Ellis, Bobbe Jean. 1976. Juvenile Court: The Legal Process as a Rehabilitative Tool.
51 flaehingten Lew Renew 697.

Evans, Katherine L. 1992. "Trying Juveniles as Adults: Is the Short Term Gain of Reuibution

Outweighed by the Long Term Effects on Society?" 62 W
95.

Fagan, Jeffrey. 1990. "Social and Legal Policy Dimensions of Violent Juvenile Crime"
WW 17: 93-133

Fagan, Jeffrey, Martin Forst, and T. Scott Vivona. 1987. "Racial Determinants of the
Judicial Transfer Decision: Prosecuting Violent Youth in Criminal Court." Cfime.

and Delinggeney, 33: 259—286.

Fagan, Jeffrey and Elizabeth P. Deschenes. 1990. "Determinants of Judicial Waiver
Decisions for Violent Juvenile Offenders." WW
anrmlogy, 81: 314-347.

Fagan, Jeffery. 1990. "Social and Legal Policy Dimensions of Violent Juvenile Crime."
WW 17: 93-133.

Feder, Lynette. 1995. Psychiatric History, Due Procedural Safeguards, and the Use of
Discretion in the Criminal Justice Process. Justice Quarterly, 12: 279—305.

Federle, Katherine Hunt. 1990. The Abolition of the Juvenile Court: A Proposal for the
Preservation of Children’s Legal Rights. W 16: 23-5 1.

211

Feiler, Stephen M. 1995. J uvenilfi in Adult Crimigl Court: Legal and Extra-legal Factors
Infl r1 in_NwO 1".1,A1 'e sw. . eTr-.11m- f venil Offnrs-sr
(Doctoral Dissertation, Tulane University, 1995). Dissertation Abstracts
International, 1451, AO4/34.

Feinberg, Joel. 1970. Doin an Deservin : Essa in th Th f R s nsi ili .
Princeton, NJ: Princeton University Press.

Feld, Barry C. 197 8. "Reference of Juvenile Offenders for Adult Prosecution: The
Legislative Alternative to Asking Unanswerable Questions."62 W

Review 515.

F eld, Barry C. 1983. "Delinquent Careers and Criminal Policy.” Criminelogy, 21: 195-212.

Feld, Barry C. 1984(a). "The Decision to Seek Criminal Charges. Just Deserts and the
Waiver Decision." W 3:27-41.

Feld, Barry C. 1984(b). “Criminalizing Juvenile Justice: Rules of Procedure for the
Juvenile Court”. 69 W 141.

Feld, Barry C. 1987. "The Juvenile Court Meets the Principle of the Offense: Legislative

Changes In Juvenile Waiver Statutes " MW
78: 471 -.533

Feld, Barry C. 1988 (a). "The Juvenile Court Meets the Principle of Offense: Punishment,
Treatment, and the Difference it Makes." 68 Hem University 1&3! Review, 821.

F eld, Barry C. 1988 (b). "Justice by Geography: Urban, Suburban, and Rural Variations in
Juvenile Justice Administration" Th 1 f rimi rimin 1 , 82:
156-210.

Feld, Barry C. 1989. "Bad Law Makes Hard Cases: Reflections on Teen-aged Axe
Murderers, Judicial Activism, and Legislative Default." W, 8: 1-101.

Feld, Barry C. 1990. "The Punitive Juvenile Court and the Quality of Procedural Justice:
Disj unctions Between Rhetoric and Reality." mm 36: 443-466.

F eld, Barry C. 1993(a). "Juvenile (In)Justice and the Criminal Court Alternative." time and

2 1 2
Delinquency, 39: 403-424.

Feld, Barry C. 1993(b). "Criminalizing the American Juvenile Court," pp. 197-280 in Crime

@1351 Juetiee: A Reflew ef Resegeh, vol. 17, Michael Tonry (ed.). Chicago:
University of Chicago Press.

Feld, Barry C. 1995. Violent Youth and Public Policy: A Case Study of Juvenile Justice
Law Reform. 79 Minnesota Law Review 966,

Feld, Barry C. 1997. Abolish the Juvenile Court: Youthfulness, Criminal Responsibility,
and Sentencing Policy. WW 88: 68-136

Fletcher, George F. 1982. The Recidivist Premium. Criminal Jestiee Ethieg, 1: 54-59.

Flicker, Barbara. 1981. "Prosecuting Juveniles as Adults: A Symptom of a Crisis 1n the
Juvenile Courts," pp. 351-377 1n J. Hall et al. (eds. )MW

lnfognetien eedT m_r1_i_n_g: Radiege 1n Publie Poliey. Columbus, OH: Academy for
Contemporary Problems.

Flicker, Barbara. 1983. Transferring J uveniles to Adult £01111 fer Trial. New York: Institute

for Judicial Administration.

Flicker, Barbara. 1987. A Short History of Jurisdiction over Juvenile and Family Matters.

In Francis X. Hartmann (ed.), F mm Chilgten te Cig'eem, mlJI (pp.229-250). New
York: Springer-Verlag.

Forst, Martin L. and Martha-Elm Blomquist.1991."Cracking Down on Juveniles: The
Changing Ideology of Youth Corrections " 5 Witnesses!
Byblie Poliey 323.

Fox, Sanford J. 1970 (a). "Juvenile Justice Reform: An Historical Perspective." 22 Stanford
mm 1 187.

Fox, Sanford J. 1970 (b). "Responsibility in the Juvenile Court." 11 Willim end My Lew
Review 659.

Fox, Sanford J. 1974. Philosophy and the Principles of Punishment in the Juvenile Court.
W 81 373-334-

213

Frazier, Charles E. 1991. Deep End Justice: Plggments or Transfer to Adult Com by
Direut File? A Report Prepared for the Florida Commission on Juvenile Justice.

F ritsch, Eric J. 1995. An Assessmgnt uf Sentencing Strategies for Managing Seriutus and
Violent J uvgnilg fognuetu. (Doctoral Dissertation, Sam Houston State University,

1995). Dissertation Abstracts International, 4955, A12/56.

Fritsch, Eric and Craig Hemmens. 1995. Juvenile Waiver in the United States, 1979-1995:
A Comparison and Analysis of State Waiver Statutes. Juvenile and Family Court
Journal, 46: 17-35.

Garnder, Martin R. 1989. The Right of Juvenile Offenders to be Prmished: Some
Implications of Treating Kids as Persons. 68 W 182.

Gasper, John and Daniel Katkin. 1980. "A Rationale for the Abolition of the Juvenile Court's
Power to Waive J urisdiction." 7 WM 937.

Gillepsie, L. Kay and Michael D. Norman. 1984. "Does Certification Mean Prison: Some
Preliminary Findings from Utah." J v '1 F il 3: 23-34.

Golding, Martin. 1977. Criminal Sentencing: Some Philosophical Considerations. In
J.B. Cederblom and William Blizek (eds), W (pp. 89-106).
Cambridge, MA: Ballinger Publishing Company.

Grundfest, Andrea R., Anne C. Paskow, Helen E. Szabo, and Richard J. Williams. 1981.
"Trial of Juveniles in Adult Court," pp.321-332 in J. Hall et al. (eds) Majglssues

in Juyenilg J u§tice Informatiun and Tm’ning: Ruatu'ng in Publig Policy. Columbus,
OH: Academy for Contemporary Problems.

Guarino—Ghezzi, Susan and Edward J. Loughran 1996. Bulguing Juygnile J ustig.
New Brunswick: New Jersey: Transaction Publishers.

Gutske, Marjorie. 1989. An Upgted Study of Disgrgtiom Waiver. Ann Arbor: Office of
Children and Youth Services.

Guttman, Catherine. 1995. “Listen to the Children: The Decision to Transfer Juveniles

to Adult Court.” 30 Lima“! Qifll Rigutt Qtyjl Lima Qty Rm’gw 507.
Hagan, Frank E. 1995. Research Methods in Criminal J ustig and Qriminolggy. New York:

214

Collier MacMillian Publishers.

Hagle, Timothy and Glenn Mitchell 1992. Goodness-of-fit Measures for Probit and Logit.
erigg Jutu'rtul uf Pulitigul Suigngg, 36: 762-784.

Hair, Joseph F. ,Rolph E Anderson, Ronald L. Tatham, and William C. Black. 1995.
MW Upper Saddle River NJ Prentice-Hall

Hairston, George E. 1981. "Black Crime and the New York State Juvenile Offender Law:
A Consideration of the Effects of Lowering the Age of Criminal Responsibility,"

pp.295-307 in J. Hall et al. (eds) Maiur Issues in Juveuilg Justiue Information and
Training: Readings in Public Puligy. Columbus, OH: Academy for Contemporary

Problems.

Hamparian, Donna, Linda Estep, Susan Muntean, Ramon Priestino, Robert Swisher, Paul
Wallace and Joseph White 1982 Wham

Lag'l‘uiug: Yom in Adult Cgurts: ktween Twu Worlg. Columbus, OH: Academy
for Contemporary Problems.

Hamparian, Donna. 1987. How Well Can We Predict for Juveniles? Juvenile Delinquency
and Adult Crime. In Femand Dutile and Cleon Foust (eds), Th9 Ptegjgjun Qt
Cu’minal Violgnce (pp. 169-178). Springfield, H4 Charles Thomas.

Hampton, Jean 1994. Liberalism, Retribution, and Criminality. In Jules Coleman and Allen
Buchanan (eds), mm (pp. 159-182). Cambridge: Cambridge University
Press.

Heugle, Robert L. 1980. The Right to Treatment for Juvenile Offenders. 26 myolu gw
Revigyy 360.

Hirase, Joanne. 1992. "State ex. rel. v. E.G.T.: Waiving Childhood Goodbye."19_mg_o_“
W, 18: 159-176.

Hirschi, Travis. 1972. Quses ufmlingugnuy. Berkeley, CA: University of California Press.

Hopson, Dan. 1987. How Well Can We Predict for Juveniles? A Review of the Literature.

In Femand Dutile and Cleon Foust (eds), Th9 Pretu'fl'un uf Crimind Viulgnue
(pp. 161-168). Springfield, IL: Charles Thomas.

215

Hosmer, David and Stanley Lemeshow. 1989. Applied Logistic Regression. New York:
John Wiley and Sons, Inc.

Houghtalin, Marilyn and G. Larry Mays. 1991. "Criminal Dispositions of New Mexico
Juveniles Transferred to Adult Court. " Crime gut Deliugueuey, 37: 393-407.

Howell, James C. 1997. Juvenile Justice and Youth Violence. Thousand Oaks, CA: Sage
Publications.

Jensen, Eric L. and Linda K. Metsger. 1994. "A Test of the Deterrent Effect of Legislative
Waiver on Violent Juvenile Crime." W 40: 96-104.

Jensen, Eric L. 1994. The Waiver of Juveniles to Criminal Court: Policy Goals, Empirical
Realities, and Suggestions for Change. 31 1&9 Law Review 173.

Jones, Michael A and Barry Krisberg. 1994. Imagee and Realig: Juvenile Crime, Youm

Viol n e li P li San Francisco: National Council on Crime and
Delinquency.

Juvenile Cum Statietics 1984. Washington, DC: Office of Juvenile Justice and
Delinquency Prevention.

Juvenile Court Stetisties. 1986. Washington, DC: Office of Juvenile Justice and
Delinquency Prevention.

Juvenile Cug Stetistics. 1987. Washington, DC: Office and Juvenile Justice and
Delinquency Prevention.

Juvenile Cog Statistics 1988. Washington, DC: Office of Juvenile Justice and
Delinquency Prevention.

Katkin, Daniel, John Kramer, and Drew Hyman. 1976. Three Models of Juvenile Justice.
Crimiuat Lew Btuletiu, 12: 165-188.

Keiter, Robert B. 1973. "Criminal or Delinquent? A Study of Juvenile Cases Transferred
to the Criminal Court." Crime uuu Qelingueney, 19: 528-538.

King, Gary. 1986. How Not to Lie with Statistics. Amerim gem! uf Pelitigl
m 30: 666-687.

216

Kelling, George. 1987. The Historical Legacy. In Mark Moore (ed ), Frum Children to
W (pp.25-48). New York: Springer-Verlag.

Kinder, Kristine, Carol Veneziano, Michael F ichter, and Henry Azuma. 1995. A Comparison
of Dispositions of Juvenile Offenders Certified as Adults with Juvenile Offenders

not Certified. Juvenile and Family Com Journal, 46: 37-42.
Klecka, William. 1980. Qiecriminant Annlysis. Newbury Park, CA: Sage Publications.

Kleinig, John. 1973. Punishment eng Desert= The Hague, Netherlands: Martinus Nijhoff.

Krisberg, Barry and James Austin. 1978. The Children of Ishmael; Critieal Persxetives
en Juvenile Juetiee. Palo Alto, CA: Mayfield Publishing Company.

Kuhn, Thomas S. 1962. The St_ructure of Scientific Revelutietg. Chicago: The University
of Chicago Press.

Lee, Leona. 1992. Philosophy and Practice in a ‘Traditional Juvenile Court. (Doctoral
Dissertation, Rutgers, 1992). W16”, A53/05.

Lee, Leona. 1994. Factors Determining Waiver in a Juvenile Court. Journal of Criminal
Justice, 22: 329-339.

Liao, Tim F. 1994. Intetpreting Probebilig Mudele: Logjt, Prebit , and Cther Gen em! 12ng
W. Thousand Oaks, CA: Sage Publications.

Mack, Julian. 1910. The Juvenile Court. 23 Md Lew Reyiew 104.

Mackie, J .L. 1982. Morality and the Retributive Emotions. Criminul Juetice Ethies, 1, pp.3-
10.

Martinson, Robert. 1974. “What Works?- Questions and Answers about Prison Reform.”
Public Interest, Spring,

Matza, David. 1964. Delingueney and Drift. New York: John Wiley & Sons, Inc.

Maxfield, Michael G. and Earl Babbie.1995.Re§gch Methtfie fer Criminal Jgtice
end Crimrn mine] ea. Belmont, CA. Wadsworth Publishing Company.

217

Mays, G. Larry and Marilyn Houghtalin. 1992. "Trying Juveniles as Adults: A Note
On New Mexico's Recent Experience." The Justice System Jeurnal, 15: 814-823.

McCarthy, Francis B. 1994. “The Serious Juvenile Offender and Juvenile Court Reform:
The Case for Prosecutorial Waiver of Juvenile Court Jurisdiction.” 34 St, Lom's
University Law Review 629.

McCorkell, Don. 1987. The Politics of Juvenile Justice in America. In Francis X. Hartmann
(ed. ), From Chilgen te Citg ens, vol, II (pp.22-31). New York: Springer- Verlag.

McNulty, Jill K and Hon. William S. White. 1976. The Juvenile’s Right to Treatment:

Panacea or Pandora’s Box? 16 W 745.
Mennel, Robert, 1973. Tho Thistles: uv nil D lin en in h Uni

1825-1940, Hanover, NH: University Press of New England
Michigan Justice Statistics Center. 1996. East Lansing, MI: Michigan State University.

Miller, Marc. 1987. Legal and Ethical Limits on the Use of Predictions of Dangerousness
in the Criminal Law. In Femand Dutile and Cleon F oust (eds), The Predjfiiun gt
Crimt'nel Vielenee (pp.35-54). Springfield, IL: Charles Thomas.

Monarski, Franciszka A. 1987. Rehabilitation vs. Punishment: A Comparative Analysis
of the Juvenile Justice Systems in Massachusetts and New York. 21 Sm

Cniversig Lew Review 1091.

Moore, Hon. Eugene A. and William P. Bartlam. 1986. Waiver Proceedings in Michigan
Juvenile Courts. W, 65: 36-45.

Mylniec, Wallace J. 1976. "Juvenile Delinquent or Adult Convict- The Prosecutor's Choice. "
The Ameriean Criminfl Law Review, 14: 29-57.

Nimick, Ellen, Linda Szymanski, and Howard Snyder. 1986. J menile Cou_rt Weiver: A Study
ef Juvenile Cetut Canes ltgnsferrsfl td Criminal Cum. Pittsburgh, PA: National

Center for Juvenile Justice.

Norman, Michael and L. Kay Gillepsie. 1986. "Changing Horses: Utah's Shift in
Adj udicating Serious Juvenile Offenders " WM 12: 85-98.

218

Parker, David B. 1976. "Juveniles in the Criminal Courts: A Substantive View of the Fitness
Decision." 23 U.C.L.A Lew Review, 988.

Pierce, Jack R. 1995. The Effects of Commitment of Violent Adolescent Offenders to
Juvenile or Adult Detention Centers: Social Adj ustrnent, Recidivism, and Prediction
of Waiver to an Adult Court. (Doctoral Dissertation, Morgan State University,
1995). Dissertation Abstracts Intermtional, 3321, A08/56.

Pisciotta, Alexander W. 1982. Saving the Children: The Promise and Practice of Parens
Patriae, 1838-1898._Qr1;tne_and_QeLmugtcy,_28z410-425.

Pisciotta, Alexander W. 1983. Race, Sex, and Rehabilitation: A Study of Differential Treat-
ment in the Juvenile Refonmtory, 1825-1900. Crime and Delinquency, 29: 254-269.

Platt, Anthony M. 1977. The Child Savers; The Invenu'en ef Delinqueney. Chicago:
University of Chicago Press.

Podkopacz, Marcy R and Barry C. Feld. 1995. Judicial Waiver Policy and Practice:
Persistence, Seriousness and Race. W 14: 74-177.

Podkopacz, Marcy R. and Barry Feld. 1996. The End of the Line: An Empirical Study of
Judicial Waiver. MW 86: 449-492.

Podkopacz, Marcy R. 1996. The Juvenile Court’s Final Decision: An Empirical Examination
of Transferring Juveniles to Adult Court. (Doctoral Dissertation, University of
Minnesota, 1996) Dissertation Abstracts International, 4450, A10/57.

Polen, Charles A. 1987. "Youth on Death Row: Waiver of Juvenile Court Jurisdiction
and the Imposition of the Death Penalty on Juvenile Offenders." l3 Netthern

Kentueg Qw Review 495.

Polier, Justine Wise. 1989. venile J i inD 1 J :Th Dis
and Vengeful Retn'butien. Hillsdale, New Jersey: Lawrence Erlbaum Associates,
Publishers.

Poulos, Tammy M. and Stan Orchowsky. 1994. "Serious Juvenile Offenders: Predicting the
Probability of Transfer to Criminal Court." Crime ad Qelingueney, 40: 3-17.

Press, S. James and Sandra Wilson. 1978. Choosing Between Logistic Regression and

 

 

219

Discriminant Analysis. Journal of the American Statistical Association, 73: 699-705.

Primorantz, Igor. 1989. usti 'n Le 1 ' hment. Atlantic Highlands, NJ: Humanities
Press International, Inc.

Roberts, Harrell B. 1987. The Inner World of the Black Juvenile Elinguent: Jim Cge
Studies Hillsdale, NJ: Lawrence Erlbaum Associates.

Rossum, Ralph A. 1996. Reforming Juvenile Justice and Improving Juvenile Character:

The Case for the Justice Model. 23 W 823.

Roysher, Martin and Peter Edelman. 1981. "Treating Juveniles as Adults in New York:
What Does It Mean and How Is It Working?", pp.265-293 in J. Hall et al. (eds)
Major Issues in J venile J tice Inf rm ti n Trainin : R ' ' '
Policy. Columbus, OH: Academy for Contemporary Problems.

Sabo, Stacey. 1996. Rights ofPassage: An Analysis of Waiver of J uvenile Court Jurisdiction.

64 W242i

Sagatun, Inger, Loretta McCollum, and Leonard P. Edwards. 1985. "The Effects of Transfers
from Juvenile to Criminal Court: A Log-linear Analysis." W, 8: 65-
92.

Salazar, Alan B. 1983. “The Expanding Scope of Prosecutorial Discretion in Charging
Juveniles as Adults: A Critical Look at People v. Thorpe.” 54 MW

gw Review 617.

Salerno, Anthony W. 1991. The Child Saver Movement: Altruism or a Conspiracy?
v nil F '1 l, 42: 37-49.

Sanbom, Joseph B. 1994. "Certification to Criminal Court: The Important Policy Questions
of How, When, and Why." mm 40: 262-281.

Schoeman, Ferdinand. 1980. On Incapacitating the Dangerous. In Joel Feinberg and Hyman
Gross (eds), Philosenhy quaw (pp.595- 603). Belmont, CA: Wadsworth Publishing

Company.

Schultz, J. Lawrence. 1973. The Cycle of Juvenile Court History. Crime and Delingueney,
19, 457-476.

 

220

Schwartz, Jeffrey S. 1983. "The Youth Offender". Transfer to the Adult Court and
Subsequent Sentencing." WW, 6: 281-313.

Scott, Elizabeth and Thomas Grisso. 1997. The Evolution of Adolescence: A Develop-
mental Perspective on Juvenile Justice Reform. Jdutnel uf Crimitgl Lew Ed

Criminelegy, 88: 137-189.

Silva, A. Pedro Duarte and Antonie Stam. 1995. Discriminant Analysis, in Laurence G.

Grimm and Paul R. Yarnold (eds), WWW
Sgtisties. Washington, DC: American Psychological Association.

Singer, Richard G. 1979. Just Deserts: Senteming Em on Eguelity end Degrt.
Cambridge, MA: Ballinger Publishing Company.

Singer, Richard G. 1987. Legal and Ethical Limits for Prediction: Accent on the Offenseln
Femand Dutile and Cleon Foust (eds), The Predigion ef Criminal Violenee (pp.55-
69). Springfield, IL: Charles Thomas.

Singer, Simon. 1993. "The Automatic Waiver of Juveniles and Substantive Justice." Crime
Magma, 39: 253-261.

Snyder, Howard and Melissa Sickmund. 1995. Juvenile foenders end Vietims: A Netienal
Remt‘t. Washington, DC: Office of Juvenile Justice and Delinquency Prevention.

Sorrentino, Joseph N. and Gary K Olsen. 1977. "Certification of Juveniles to Adult
Court"4 W 497.

Streib, Victor L. 1995. Sentencing Juvenile Murderers: Punish the Last Offender or

Save the Next Victim? 26 Um’vmity ef Tolede Lew Refl'ew 765.

Suffredini, Brian R. 1994. Juvenile Gunslingers: A Place for Punitive Philosophy in
Rehabilitative Juvenile Justice. 35 Besten allege Lay; Review 865.

Surrell, Helen W. 1990. Comparison of Risk Predictor Instruments for Classification of
Juvenile Probationers. (Doctoral Dissertation, Wayne State University, 1990)

Dissentetiun Abstreets Intemetienel, 1012, A51/03.

Thomas, Charles W. and Shay Bilchik. 1985. "Prosecuting Juveniles in Criminal Courts: A

221

Legal and Empirical Analysis." Journal of Criminal Law and Criminology, 76: 439-
479.

Valliere, Barbara J. 1986. "The Transfer of Juvenile Offenders to Adult Courts in
Massachusetts: Reevaluating the Rehabilitative Ideal." 20 MW
Review, 989.

 

von Hirsch, Andrew. 1976. Doing J ustig: The Choiee of Punishments. New York: Hill and
Wang.

von Hirsch, Andrew. 1980. Desert. In Joel Feinberg and Hyman Gross (eds), Philosenhy
ef Jew (pp.573-576). Belmont, CA: Wadsworth Publishing.

von Hirsch, Andrew. 1985. Past of Future Crimes: Deservedness and Dangerousness in
Senteneing of Criminels. New Brunswick, NJ: Rutgers University Press.

von Hirsch, Andrew. 1992. Proportionality in the Philosophy of Punishment. Crime and
J LISIIQI A Review of Justiee, 16: 55-98.

Walsh, Anthony. 1987. Teaching Understanding and Interpretation of Logit Regression.
Teaching Seeielegy, 15: 178-183.

Wertheimer, Roger. 1983. Understanding Retribution. Criminal Justice Ethies, 2: 19-38.

Whitebread, Charles H. and Robert Batey. 1981. "The Role of Waiver in the Juvenile Court:
Questions of Philosophy and Function," pp.207-226 in J. Hall et al. (eds) Meier
Issue inJvnileti Infonnin nTinin:R 'n in liPli.
Columbus, OH: Academy for Contemporary Problems.

Wizner, Stephen. 1984. "Discretionary Waiver of Juvenile Court Jurisdiction: An Invitation
to Procedural Arbitrariness" W, 3: 41-50.

Wizner, Stephen and Mary F. Keller. 1977. “The Penal Model of Juvenile Justice: Is
Juvenile Court Delinquency Jurisdiction Obsolete?” 50 NY, U, Jew Review 1120,

Wright, Raymond E., 1995. Logistic Regression, in Laurence G. Grimm and Paul R.
Yamold (eds), Reeding end Understanding Mmtivmge Stetistics, Washington,

DC: American Psychological Association.

222

Young, Marshall. 1981. "Waiver from A Judge's Standpoint," pp.309-320 in J. Hall et al.

(eds) him or Issues in Juvenile Justig Infonnetien and Training; Reeu'ngs in fltblie
Pelicy. Columbus, OH: Academy for Contemporary Problems.

Zimring, Franklin E 1981. "Notes Toward a Jurisprudence of Warver ,pp. 1 93-305 1n J. Hall

et al. (eds. )M ejer Issues 1n Juvenile Justiee Infermetien ad Training; Reedin nings
Biblie Policy. Columbus, OH: Academy for Contemporary Problems.

Zimring, Franklin E. 1982. The Changing Legal World of Adolescence. New York: The Free
Press.

Zimring, Franklin E. 1991. "The Treatment of Hard Cases in American Juvenile Justice: In

Defense of Discretionary Waiver. " 5 N tre D J f E 'c 1i
Policy 267.

1990. SAS/STAT User's Cuide, vol. 2. Cary, NC: SAS Institute Inc.

Statutes and Bills Cited:

Alabama Code §12-15-2 (1995)

Alabama Code §12-15-34 (1995)

Alabama Code §12-15-34.1 (1995)

Arkansas Statutes Annotated §9—27—218 (1995)
Colorado Revised Statutes §16-11-309 (1997)
Colorado Revised Statutes §18-1-105 (1997)
Colorado Revised Statutes §19-1-2-517 (1997)
Colorado Revised Statutes §19—2-518(1997)

Georgia Code Annotated §15-11-5 (1994)

Georgia Code Annotated §15-11-37 (1994)

Florida Statutes Annotated §39.02 (1996)

Florida Statutes Annotated §39.09 (1996)

Louisiana Revised Statutes Annotated §6-1570 (1995)
Louisiana Revised Statutes Annotated §6-157l .1 (1995)
Louisiana Revised Statutes Annotated §4-305 (1995)
Louisiana Revised Statutes Annotated §11-857 (1995)
Louisiana Revised Statutes Annotated §11-862 (1995)
Maryland Code Annotated §3-804 (1995)

Michigan Public Acts, No. 171 (1873)

Michigan Public Acts, No. 260 (1873)

 

223

Michigan Statutes Annotated §27.2178 (598.4) (1987)
Michigan Statutes Annotated §28.860 (l) (1994)
Michigan Statutes Annotated §28.1072 (3) (1994)
M.C.L.A., ch.64 §2012(1915)

M.C.L.A. ch. 64 §2016(1915)

M.C.L.A. §712A.4 (1948)

M.C.L.A. §712A (1979)

M.C.L.A. §769.1 (1988)

M.C.L.A. §712A.4 (1988)

M.C.L.A. §764.1f(1994)

M.C.L.A. §764.27 (1994)

House Bill No. 5203 (1987)

House Bill No. 4730 (1987)

House Bill No. 4731 (1987)

Mississippi Code Annotated §43-21-151 (1993)
Mississippi Code Annotated §43-21-157 (1993)
Montana Code Annotated §41-5-206 (1997)
Revised Statutes of Nebraska §43-247 (1993)
Revised Statutes of Nebraska §43-279 (1993)
Revised Statutes of Nebraska §43-261 (1993)
Revised Statutes of Nebraska §43-276 (1993)
South Dakota Codified Laws §26-11-1 (1992)
South Dakota Codified Laws §26-11-2 (1992)
South Dakota Codified Laws §26-1 1-3 (1992)
South Dakota Codified Laws §26-11-4 (1992)
South Dakota Codified Laws §26-8C-2 (1992)
South Dakota Codified Laws §26—11-3.1 (1997)
Utah Code Annotated §78-3a-104 (1996)

Utah Code Annotated §78-3a-105 (1996)

Utah Code Annotated §78-3a-601 (1996)

Utah Code Annotated §78-3a-603 (1996)

Utah Code Annotated §78-3a-502 (1996)

Utah Code Annotated §78-3a-602 (1996)
Wyoming Statutes Annotated §14-6-203 (1997)
Wyoming Statutes Annotated §14-6-237 (1997)
Wyoming Statutes Annotated §14-6-229 (1997)
Wyoming Statutes Annotated §14-6-225 (1997)

 

 

224

Cases ited

People v. Schumacher, 256 NW. 2d 39 (1977)
People v. Durham, 377 NW. 2d 262 (1985)
Kent v. United States, 383 US. 541 (1966)

In re Gault, 387 US. 1 (1967)

In re Winship, 397 US. 358 (1970)

McKeiver v. Pennsylvania, 403 US. 528 (1970)