NCJ Number
12726
Journal
Washington and Lee Law Review Volume: 30 Issue: 3 Dated: (FALL 1973) Pages: 591-613
Date Published
1973
Length
23 pages
Annotation
REVIEW OF THE CURRENT STATE OF THE LAW AND CONSTITUTIONAL PRINCIPLES INVOLVED IN THE DECISION TO PROCESS A JUVENILE OFFENDER IN CRIMINAL RATHER THAN JUVENILE COURT.
Abstract
IN RECENT YEARS, COURTS AND LEGISLATURES HAVE EXTENDED CERTAIN DUE PROCESS RIGHTS TO JUVENILES. THIS EXTENTION HAS PROMPTED COMMENT ON THE 'WAIVER DECISION', THE DETERMINATION BY AN OFFICIAL THAT THE JUVENILE IS NOT AMENABLE TO THE REHABILITATIVE PROCESS OFFERED BY THE JUVENILE COURT AND, CONSEQUENTLY, SHOULD BE PROCESSED AS AN ADULT IN THE CRIMINAL COURTS. WHEN THIS DECISION IS MADE BY A JUDICIAL OFFICER, THE SUPREME COURT HAS HELD THAT DUE PROCESS REQUIRES THAT THE JUVENILE BE GRANTED A HEARING OR AT LEAST THAT THE OFFICER STATE FULLY THE REASONS FOR HIS DECISION. THIS JUDICIAL DECISION IS FULLY REVIEWABLE. IN COMPARISON, SEVERAL JURISDICTIONS GRANT THE WAIVER DECISION TO THE PROSECUTOR. ALTHOUGH THE SUPREME COURT HAS NOT RULED ON THIS ISSUE, LOWER COURTS HAVE HELD THAT AS AN INCIDENT OF SEPARATION OF POWERS, THIS PROSECUTORIAL DECISION IS STRICTLY DISCRETIONARY AND NOT REVIEWABLE BY THE JUDICIARY. THE AUTHOR REVIEWS A 1973 DECISION BY THE FOURTH CIRCUIT COURT OF APPEALS, COX V. UNITED STATES, THAT AFFIRMS THIS VIEW. IN ADDITION, HE ANALYZES THE FEDERAL ADMINISTRATIVE PROCEDURE ACT AND CONCLUDES THAT IT IS UNLIKELY THAT COURTS WILL GRANT REVIEW OF THIS DISCRETIONARY DECISION UNDER THAT LEGISLATION. HE SUGGESTS THAT, ALTERNATIVELY, THIS DENIAL OF DUE PROCESS COULD BE REMEDIED IN THE FEDERAL SYSTEM BY HAVING THE ATTORNEY GENERAL VOLUNTARILY GRANT A HEARING TO JUVENILES PRIOR TO A WAIVER DECISION. A MORE RELIABLE REMEDY, HOWEVER, WOULD BE LEGISLATION REQUIRING THAT THE ATTORNEY GENERAL'S DECISION TO WAIVE JUVENILE JURISDICTION BE APPROVED BY A JUVENILE JUDGE. THIS WOULD RENDER ALL WAIVER DECISIONS REVIEWABLE FOR POSSIBLE DENIALS OF DUE PROCESS.