Citizen. Immigrant. Rich. Poor. Veteran. Able-bodied. Democrat. Republican. Our rights, privileges, and immunities are continuously determined by the different labels we’re granted by the institutions that govern us. Labels are guarded by black and white lines, with many set indicators placing each of us in these rigid categories. In our legal system, many of our rights are afforded based on the indicator of our age, the line between black and white generally falling right between when a person transitions from adolescence to adulthood. As an adult in America, you can rent an apartment, vote in our elections, get your own credit card, serve on a jury, and even get married to your high school sweetheart. As evidenced by these typical cases, the lines are generally clear when it comes to the rights you hold or don’t hold as someone below the age of 18 versus above 18, except in one highly problematic case. You would hope that for someone on trial, the lines would remain clear. But this is not the case in our judicial system.
Children generally as young as 13 fall within a gray area of our criminal justice system because of mechanisms which allow juveniles to be tried as adults, a phenomenon that is problematic in its very nature. However, the disparity which exists in determining who is considered an adult and who isn’t is strikingly racist. In order to better understand why prejudiced transfer practices are dangerous, we must establish the history of the juvenile justice system, the philosophical and psychological benefits of juvenile-oriented services, the harms faced by transferred juveniles, and the effects of transfer patterns on historically marginalized communities.
The juvenile justice system, born out of reforms during the Progressive Era, was created to cater to the needs of young individuals who can still be rehabilitated. Initially, it was designed to provide personalized treatment decisions by juvenile court professionals, emphasizing prevention and rehabilitation over punishment — the priorities of the adult criminal justice system. However, there has been implemented legal mechanisms through which juveniles are not afforded these rehabilitative considerations. Juveniles are often legislatively or discretionarily transferred to the adult system through the mechanisms including judicial transfer, (judges have the authority to waive jurisdiction over a juvenile), statutory exclusion (legislation mandating automatic exclusion from juvenile court jurisdiction), and prosecutorial direct file (prosecutors file charges directly in adult criminal court).
The decision to transfer a juvenile into the adult criminal justice system appears to be a function of three principal considerations: age, the dangerousness of a youth, and the youth’s treatment prognosis. However, the subjectivity of this criteria already leaves room for disproportionately discriminatory practices by individual actors holding the “transfer power.” The concepts of “amenability to treatment” and “dangerousness” invite dissimilar interpretation across cases, and the differences in types of waivers — namely legislative and judicial waivers — further complicate the disparate procedures. The legislative waiver protects against biases but leaves no room for an individualized approach, while the judicial waiver gives room for the judge’s discretion but may allow judges to perpetuate systemic disparities within our judicial system. Moreover, because judicial waiver statutes typically give judges broad discretion in making transfer decisions, they can invite abuse of judicial discretion and discriminatory application, thus harmfully destandardizing the waiver process. According to judicial justice scholar Barry Feld, “judicial waiver statutes reveal all of the defects characteristic of individualized, discretionary sentencing schema.” However, the legislative waiver in some cases is no better, mandating each juvenile as another case in need of categorization and not prioritizing their individual development and rehabilitation. Regardless of the type of transfer, the punitive context of the adult criminal justice system tends to have negative impacts on transferred juveniles and their greater communities compared to the more proportionate sentences and rehabilitative environment accorded in the juvenile justice system.
Additionally, juveniles are not psychologically developed enough to receive the adult-oriented services offered in the adult criminal justice system. The diminished culpability rationale — used as precedent in Miller v. Alabama, Roper v. Simmons, Atkins v. Virginia, and Graham v. Florida — reveals that juveniles are less mature in ways relevant to legal procedure, including their relatively diminished capacities to deliberate and consider consequences. They are scientifically incomparable to adults and simply put, cannot possibly receive fair and just prosecutions in an adult court or the criminal justice system. Children lack time references, rarely recall events with consistency, have difficulty remembering names and addresses, are prey to cross examination that takes advantage of “prior inconsistent statements,” and are unable to analyze outcomes logically during plea negotiations among many other highly problematic disadvantages in the adult justice system, according to researchers.
Beyond the cognitive disparities, juveniles placed in adult facilities and prisons suffer from violent assaults at a far greater rate. To enumerate the heightened danger, children in adult facilities are 500% more likely to be sexually assaulted, 200% more likely to be beaten by facility staff, and 50% more likely to be attacked with a weapon than juveniles being held in a juvenile facility. Not only is the likelihood of abuse for a juvenile greater in an adult facility, but juveniles make up a significant amount of substantiated incidents despite being a minority total inmates in adult facilities, with 21% of all victims in substantiated incidents of inmate-on-inmate sexual violence in jails being juveniles, according to data from 2005.
Given that juveniles are more likely to face harmful circumstances in adult facilities and adult-oriented services are not appropriate or fairly offered to juveniles in more ways than one, the transfer of juveniles to the adult system when a perfectly compatible juvenile system is available is counterintuitive. While proponents of transfer truthfully point towards the deficiencies of most juvenile facilities in arguments supporting transfers of juveniles to adult facilities — which may be well-equipped to serve adults convicted of more serious offenses — a more subtle disadvantage of the transfer process is that it undermines efforts to pressure state and regional legislatures into improving and better funding treatment options in the juvenile system. As it stands today, the transfer decision depends in part on “the likelihood of reasonable rehabilitation of the juvenile . . . by the use of procedures, services and facilities currently available to the Juvenile Court ” as declared in Kent v. United States. The majority of state juvenile transfer statutes provide, consistent with this provision, that one factor to consider in determining whether transfer should occur is whether treatment programs are available within the juvenile justice system’s jurisdiction. Yet in many states, more nuanced programs have not been made available in juvenile facilities and the increases in juvenile transfers lead to the postponement of juvenile justice reform. Nevertheless, as established, even in light of juvenile justice deficiencies, juvenile facilities and systems still continue to be the more appropriate option for juveniles.
There is also concrete evidence that a variety of factors including a juvenile’s race may influence a waiver decision. As previously established, a transfer into the adult system generally results in harsher sentences, thus the waiver process thus systematically harms certain demographics and minority communities. Even as recently as fiscal year 2022 in states like Maryland, Black juveniles make up 83.3% of youth charged as adults pending transfer statewide.
While the juvenile justice system and adult criminal justice system have made significant strides to remove racist determinations from legal procedure, several studies have revealed that race may still indirectly affect transfer decisions through factors such as dress, demeanor, citizenship, education, quality of defense representation, verbal abilities of the minor, and status in the community. These disparities occur in spite of explicit statements in the judicial guidelines that these characteristics may not affect the sentence length and outcome. Although there may not be direct evidence of explicit sentencing discrimination and the effects of race on specifically sentencing outcomes remain indirect, the effects of race are much too apparent to be ignored — minority populations, in particular Black juveniles, are more likely to face harsher sentencing outcomes and a negative development into adulthood because of the indirect racial discrimination occurring during the transfer process.
In terms of next steps, by developing standardized transfer checklists for judges and collecting data on juvenile judges’ trends, the number of consciously and unconsciously biased transfers may decrease. Additionally, greater funds dedicated towards the development of mental and behavioral health treatment options for adjudicated minors, the onboarding of additional juvenile facility staff, community-oriented services for adjudicated minors, and school-sponsored gang prevention and after-school extracurricular programs may all work towards decreasing juvenile offenders and developing the juvenile justice system as a whole.
Maya Santhanam ‘27 studies in the College of Arts & Sciences. She can be reached at m.j.santhanam@wustl.edu.