Pretrial Procedures Transfer hearings Detention Intake Diversion Petition and pretrial release Bail and preventive detention Plea bargaining (adjustment)

Transfer to adult court Transfer, waiver, bindover, removal Concurrent jurisdiction Excluded offenses (traffic, serious)

– Number of excluded offenses has increased

Judicial waiver to adult court

Kent v. U.S. Waived to adult court, despite

requests for a psychiatric evaluation, access to social service file, motions for a hearing

Found guilty in adult court for housebreaking and robbery, not guilty by reason of insanity for rape

Kent v U.S. (1966) Court ruled that cases of waiver

required: A hearing Access to counsel and access by

counsel to social service records Reason for the decision

Criteria to be considered Seriousness of offense Aggressive or violent Maturity of juvenile Record of the juvenile Public protection Potential for rehabilitation

Breed v. Jones Petition filed and he was adjudicated Found unfit for juvenile court at

disposition hearing Transferred to adult court Found guilty U.S. Supreme Court determined that

this was double jeopardy (5th amendment

Transfer hearings Full hearing Notice Right to counsel Statement for reasons

Debate over transfer Get tough vs. rehabilitation 1% now transferred (drugs most

common) Cases waived increased in early

1990s, number has now been decreasing

Debate Waivers do not necessarily increase

public protection; result may be the same in both juvenile and adult court

In one study., only 3% of juveniles tried in adult court received longer sentences than they would have received in juvenile court (1996)

Debate However, in another study those

waived to adult court received significantly greater sentences than those retained in juvenile court (1986)

Another problem is that transfers might be motivated by political considerations rather than the case

Debate One study found that juveniles

transferred to adult court no more dangerous than those retained

Transfer decisions not consistent: appears to be racial disparity

Problem of prosecutorial discretion: in some jurisdictions prosecutor makes the decision

Debate Need for transfer for very serious

cases: juvenile justice system not set up to deal with such cases

Juveniles transferred have greater security risks, less swift punishment, lower conviction rates, shorter incarceration, higher recidivism

Detention Temporary care of youths by the state

in a physically restricted facility pending court disposition or transfer to another placement

Shelter care: temporary care in physically unrestricting facilities

Detention Movement to remove status offenders

and dependent/neglected to less secure facilities, such as temporary foster care

60% of detainees are delinquent Many status offenders are runaways Increasing number of drug offenses

Detention Increase in the use of detention Majority are detained briefly and

released to parents, screened by intake probation officers

No uniform criteria for detention decisions

Race, class and # of parents might have an influence

Detention decision NCCD recommends that the standards

should be: likelihood of new offense, a danger to themselves or community, or likelihood of running away

Most jurisdictions require a detention hearing to extend the period of detention beyond 24 hours

Detention hearing This hearing should be: Without delay Right to notice and counsel

Provision of services

Detaining juveniles in adult jails

More common in rural areas Risk of victimization Few services Juvenile Justice and Delinquency Act

amended in 1989 to require states to remove juveniles from adult jails

Not clear how often this happens—most common estimate 100,000/year

Intake Screening of cases by the juvenile

justice system Decisions: send the youth home,

diversion, file a petition, file a petition and detain

Consent decrees and informal probation or informal adjustment

Intake Considerations: age, offense, prior

record, cooperativeness of child and parents, whether the youth can get appropriate services elsewhere

Legal rights? Intake traditionally handled by juvenile

probation Increased role of the prosecutor

Diversion Screening out children from the

juvenile court without judicial decision Roots: labeling theory Common criteria for diversion:

nonviolent or status offender, or alcohol or drug problem, age, no serious priors

Diversion Variety of mechanisms through

probation, the court, the prosecutor. Successful participation necessary to avoid court action

In some jurisdictions, 50% of youths are diverted

Net widening

Petition Filing a petition—can be filed by

police, parents, probation, or other social service agency

If the child admits to the allegations, a hearing might be scheduled and a treatment plan developed

Otherwise, adjudication hearing set

Pretrial Probation does an assessment Right to notice (youth, counsel and

parents) Continued detention? No right to bail, because it is a civil

proceeding, can be released to parents, detention is supposed to be rehabilitative, not punitive

Bail Some states do allow for bail for

youths All the problems of the bail system

then apply Without bail, youths have few rights

Preventive detention Detaining a person because of his/her

suspected danger to the community and because he/she might commit more crimes

Can a person be detained for acts he/she has not yet committed?

Supreme Court eventually upheld preventive detention for adults, but it is seldom explicitly applied

Preventive detention All states do allow for the preventive

detention of juveniles, because although adults have a right to liberty, juveniles have a right to custody, and can be detained for their own protection

Schall v. Martin Detention based on prediction of future

behavior not a violation of due process Must be procedural safeguards, such

as notice, a hearing and a statement of facts, before placement in detention

Plea bargaining Not a part of the juvenile court

originally, not seen as necessary because the court was there to help

Increasing role of the prosecutor Most states have now addressed and

regulate the practice, but the amount of regulation varies widely

More formal in urban areas

Plea Bargaining Considerable debate over whether it should

be used in the juvenile system It appears to be much less common in the

JJS as compared to the adult system, but on the increase

Less common because some of the incentives to plea bargain are less important in the juvenile system (I.e. dropping a felony to a misdemeanor)