Decision To Seek Criminal Charges - Just Deserts and the Waiver Decision

• NCJ Number: 99382
• Journal: Criminal Justice Ethics Volume: 3 Issue: 2 Dated: (Summer/Fall 1984) Pages: 27-41
• Author(s): B C Feld
• Date Published: 1984
• Length: 15 pages
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

This article examines major theoretical and practical issues in juvenile court waivers for violent and serious juvenile offenders, including differences in court philosophy, discretionary decisionmaking, criteria for waiver, definitions of adulthood, and procedural safeguards.

Abstract

When applied to the young offender, retribution, deterrence, incapacitation, and rehabilitation rationales for legal intervention suggest contradictory social and legislative practices. The persistent or violent juvenile offender challenges both the rehabilitative assumptions of the juvenile court and the propriety of relatively informal and short-term social control. At present, juveniles can be transferred to adult courts by judicial or legislative waiver. Although the former is the more common, the grounds for judicial waiver, amenability to treatment and/or threat to public safety involve highly discretionary determinations that result in inconsistencies and disparities. Further, the primary justification for waiver is the need for minimum lengths of confinement that are in excess of the maximum sanctions available within the juvenile court. Judicial application of this premise suggests that selective incapacitation and retribution are the appropriate theories of punishment for structuring the choice of waiver criteria. Just-deserts principles can supply a more consistent, just, and easily administered method for making waiver decisions. Using a legislated definition of adulthood and waiver system, it would be possible to exclude youthful offenders from juvenile court on a rational and legally defensible basis such as present offense and prior record. In addition, in those cases where waiver is justified on the basis of irrebuttable criteria, the adult courts provide both procedural safeguards and sufficient flexibility for whatever individualization may be required. Included are 85 footnotes.