After I read about this horribly tragic case (while on a NYC bus, a 14 yo kid who was aiming for a rival, missed and killed instead an ‘innocent bystander’ - a 39 yo father of two. Kid is to be tried as an adult), I realized I don’t understand how and why some kids are tried as adults.
I assume that ‘Judicial Waiver’ tends to occur when the accused is close to adult age and the crime is a ‘major’ one, especially if violence was involved. That seems reasonable and I assume is unlikely to be employed in a blatantly unfair manner. And, I am not interested (at least now) in either ‘Statutory Exclusion’ or the 'Once an adult, always an adult" notion.
My question has to do with so-called ‘Prosecutorial Discretion’. In particular, if a prosecutor opts to try a juvenile defendant as an adult, are there criteria that must be satisfied? Or, can the DA (or whoever) simply do so by fiat? In either case, can the prosecutor’s choice be appealed? To whom? And, at the end of the day, if there is disagreement about whether to try the accused in juvenile or adult court, who makes the final decision?
Apply the question to statutory rape cases where both individuals are minors. I can imagine two extreme scenarios: one in which the male is slightly under “adult”, say 17, and the female is really young, say any age before puberty; another where the female and male are both the same age, say after puberty but still minors. In some jurisdictions, both of these cases are technically statutory rape, but there is an obvious difference. I’m fairly confident (not entirely, but fairly) that the law says nothing about puberty.
I’m guessing the local mores play into the decision on whether the child is tried as an adult, and in some cases, I can see where this may be a source of injustice.
In Virginia, the prosecutor can opt to try any juvenile, 14 or older, as an adult if they are alleged to have committed an act that would be a felony by adult standards.
For serious cases, i.e., rape, robbery, murder (any degree), kidnapping with intent, etc… Transfer to adult court is completely at the discretion of the prosecutor. The juvenile court must only find probable cause that the offense was committed (just like a preliminary hearing in adult court). The case then moves on to a grand jury for adult indictment.
If the charges are any felony, minus the biggies, i.e., b&e, unlawful wounding, poss with intent to distribute… Transfer is discretionary. The prosecutor gives notice, but a juvenile court judge must evaluate several factors to determine if transfer is appropriate (age, prior history, etc…).
There are still some protections with respect to sentencing even if a kid has been transferred. But the automatic transfer based on prosecutor discretion is a huge bargaining chip, as you can imagine… and has resulted in some truly disparate outcomes. It sucks!!!
ETA: I forgot to ask: if for serious cases it’s at the discretion of the prosecutor, does the accused have any recourse? Can he appeal such a decision? Or is that it - he’s going to adult court, full stop?
My instinct is to try and rationalize away some, maybe all, of the disparity by recognizing two factors: first, that minority youths are (statistically) less likely to have families that can afford to provide the supervision required to keep their kid out of prison. In other words, and as several of your cited sources note, judges are often willing to shift the cost of such intervention onto families. As a means of saving public funds if nothing else, this practice seems reasonable. However, the reality is that minority kids’ families will be less likely to propose, and benefit from, this type of arrangement. So although the net effect appears racist, its source ultimately has socio-economic roots.
A second factor that may be operating (and I have no cites for this, just my speculation) is that minority youths charged with serious crimes may be more likely to have gang connections and it is the gang affiliation that prompts the prosecutor to to move things to adult court, but not the kid’s race or ethnicity.
At the end of the day, though, if I am to be intellectually honest, I must confess that there probably is some aspect of racism at work. But let’s not overstate it. ‘Some aspect’ is not all.
Trying as an adult seems to occur quite often in the US. What exactly occurs when such a thing happens.
Is it a case of the choice of forum only. In that they are tried in the regular court, but that court has only the punishment powers that a Juvenile Court would have. This is what happens in my jurisdiction and its not called “tried as an Adult”. The protections and restrictions inherent in Juvenile Courts continue.
The minor is tried in exactly the same manner as an adult would be?
I live in the most ethnically diverse city in the world where racism, if it exists at all, is minimal and hardly a ‘force’. So pardon me if I didn’t automatically assume its presence elsewhere.
That you take racism as a given - as being axiomatic - is where the snark should be directed.
What if it’s non-violent but sort of sophisticated and adult-like, something like rather refined fraud? Because as it is portrayed now it’s coming across as somewhat barbaric, as if it is largely dependent on bloodlust and the seeking of revenge on the part of society or the prosecution. It doesn’t particularly seem like it actually has anything to do with considering the child an adult by some reasonable standard…?
I’ve never understood the problem with charging juveniles as adults for serious crimes. When I was 14, I knew that it was wrong to shoot someone or steal from someone. No maturation progress helped with that understanding four years later.
Yes, if the kid is smart mouthing his mother or drinking beers out by the lake, then that is a juvenile matter if his parents can’t put a stop to it. Murder and armed robbery? No. If you release him at age 21, he will just murder or rob another citizen.
Since the frontal lobe, the part of the brain associated with rational thinking, tends to mature only around age 24 or so, it might be wise not to try people below that age as adults.
Back in the 1980s, this was a big news topic; it was very difficult then to move a juvenile to adult court, and IIRC, not possible at all in some jurisdictions. As a result, gangs and organized crime were using 14, 15 & 16-year-olds as hit men.
I don’t think this was terribly common, and at any rate, it you were not someone organized crime was likely to put a hit on, you didn’t have much to worry about. It was the Bogeyman that came along after the McMartin trial was over-- killer kids, they were around every corner.
Anyway, the result was legislation that made it very easy-- too easy, if you ask me-- to transfer juveniles to adult court, and for almost any offense, not just murder.
Really? So if a 23 year old serial killer murders fifty people, we send him to bed without dinner? Didn’t you know way before age 24 that you were not supposed to rape, kill, or steal? Did something from the time you learned that until age 24, cement that knowledge more accurately for you?
Remember Oliver Twist? He was falsely accused of pickpocketing. Should he have been tried as an adult? Most people would agree not. You can change values of variables in this story to come up with situations where people aren’t so sure; a different more egregious crime, or an older age. So it seems there at least limits on what we think of as fair regarding trying children as adults. Finding out and making sense of those limits is the problem.