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Dept of Justice National Report on Trying Juveniles as Adults 2011

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U.S. Department of Justice
Office of Justice Programs
Office of Juvenile Justice and Delinquency Prevention

National
Report Series
September 2011

This bulletin is part of the
Juvenile Offenders and
Victims National Report Series.
The National Report offers a
comprehensive statistical
overview of the problems of
juvenile crime, violence, and
victimization and the response
of the juvenile justice system.
During each interim year, the
bulletins in the National
Report Series provide access
to the latest information on
juvenile arrests, court cases,
juveniles in custody, and
other topics of interest. Each
bulletin in the series high­
lights selected topics at the
forefront of juvenile justice
policymaking, giving readers
focused access to statistics
on some of the most critical
issues. Together, the National
Report and this series provide
a baseline of facts for juvenile
justice professionals, policymakers, the media, and con­
cerned citizens.

Trying Juveniles as
Adults: An Analysis of
State Transfer Laws and
Reporting
Patrick Griffin, Sean Addie, Benjamin Adams, and Kathy Firestine

A Message From OJJDP
In the 1980s and 1990s, legislatures in nearly every state expanded transfer laws that
allowed or required the prosecution of juveniles in adult criminal courts. The impact of
these historic changes is difficult to assess inasmuch as there are no national data sets that
track youth who have been tried and sentenced in the criminal justice system. Moreover,
state data are hard to find and even more difficult to assess accurately.
In addition to providing the latest overview of state transfer laws and practices, this bulletin
comprehensively examines available state-level data on juveniles adjudicated in the criminal
justice system. In documenting state reporting practices regarding the criminal processing
of youth and identifying critical information gaps, it represents an important step forward in
understanding the impact of state transfer laws.
Currently, only 13 states publicly report the total number of their transfers, and even fewer
report offense profiles, demographic characteristics, or details regarding processing and
sentencing. Although nearly 14,000 transfers can be derived from available 2007 sources,
data from 29 states are missing from that total.
To obtain the critical information that policymakers, planners, and other concerned citizens
need to assess the impact of expanded transfer laws, we must extend our knowledge of the
prosecution of juveniles in criminal courts. The information provided in these pages and
the processes used to attain it will help inform the focus and design of additional federally
sponsored research to that end.
Jeff Slowikowski
Acting Administrator

Access OJJDP publications online at ojjdp.gov

All states set boundaries where childhood ends and
adult criminal responsibility begins
Transfer laws alter the
usual jurisdictional age
boundaries for
exceptional cases
State juvenile courts with delinquency ju­
risdiction handle cases in which “juve­
niles” are accused of acts that would be
crimes if “adults” committed them. Gen­
erally, these terms are defined solely by
age. In most states, youth accused of vio­
lating the law before turning 18 years old
come under the original jurisdiction of the
juvenile courts, whereas those accused of
violating the law on or after their 18th
birthdays have their cases processed in
criminal courts. Some states draw the ju­
venile/adult line at the 17th birthday, and
a few draw it at the 16th birthday.
However, all states have transfer laws
that allow or require criminal prosecution
of some young offenders, even though
they fall on the juvenile side of the juris­
dictional age line.
Transfer laws are not new, but legislative
changes in recent decades have greatly
expanded their scope. As a result, the
transfer “exception” has become a far
more prominent feature of the nation’s
response to youthful offending.

Most states have
multiple transfer
mechanisms
Transfer laws vary considerably from
state to state, particularly in terms of flex­
ibility and breadth of coverage, but all fall
into three basic categories:
n	 Judicial waiver laws allow juvenile

courts to waive jurisdiction on a caseby-case basis, opening the way for
criminal prosecution. A case that is
subject to waiver is filed originally in
juvenile court but may be transferred

2

with a judge’s approval, based on
articulated standards, following a for­
mal hearing. Even though all states set
minimum thresholds and prescribe
standards for waiver, the waiver deci­
sion is usually at the discretion of the
judge. However, some states make
waiver presumptive in certain classes
of cases, and some even specify cir­
cumstances under which waiver is
mandatory.
n	 Prosecutorial discretion or concurrent

jurisdiction laws define a class of
cases that may be brought in either
juvenile or criminal court. No hearing
is held to determine which court is
appropriate, and there may be no for­
mal standards for deciding between
them. The decision is entrusted entire­
ly to the prosecutor.
n	 Statutory exclusion laws grant crimi­

nal courts exclusive jurisdiction over
certain classes of cases involving
juvenile-age offenders. If a case falls
within a statutory exclusion category,
it must be filed originally in criminal
court.
All states have at least one of the above
kinds of transfer law. In addition, many
have one or more of the following:
n	 “Once adult/always adult” laws are a

special form of exclusion requiring
criminal prosecution of any juvenile
who has been criminally prosecuted in
the past—usually without regard to
the seriousness of the current offense.
n	 Reverse waiver laws allow juveniles

whose cases are in criminal court to
petition to have them transferred to
juvenile court.
n	 Blended sentencing laws may either

provide juvenile courts with criminal
sentencing options (juvenile blended
sentencing) or allow criminal courts to

impose juvenile dispositions (criminal
blended sentencing).

Nearly all states give
courts discretion to
waive jurisdiction over
individual cases
A total of 45 states have laws designating
some category of cases in which waiver
of jurisdiction may be considered, gener­
ally on the prosecutor’s motion, and
granted on a discretionary basis. This is
the oldest and still the most common
form of transfer law, although most
states have other, less traditional forms
as well.
Discretionary waiver statutes prescribe
broad standards to be applied, factors
to be considered, and procedures to be
followed in waiver decisionmaking and
require that prosecutors bear the burden
of proving that waiver is appropriate. Al­
though waiver standards and evidentiary
factors vary from state to state, most take
into account both the nature of the al­
leged crime and the individual youth’s
age, maturity, history, and rehabilitative
prospects.
In addition, most states set a minimum
threshold for waiver eligibility: generally a
minimum age and a specified type or
level of offense, and sometimes a suffi­
ciently serious record of previous delin­
quency. Waiver thresholds are often quite
low, however. In a few states—such as
Alaska, Kansas, and Washington—prose­
cutors may ask the court to waive virtual­
ly any juvenile delinquency case. As a
practical matter, however, even in these
states, waivers are likely to be relatively
rare. Nationally, the proportion of juvenile
cases in which prosecutors seek waiver is
not known, but waiver is granted in less
than 1% of petitioned delinquency cases.

National Report Series Bulletin

Most states have multiple ways to impose adult sanctions on offenders of juvenile age
Judicial waiver
State

Discretionary Presumptive

Number of states
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Dist. Of Columbia
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming

45

n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n

15

Prosecutorial
discretion

Statutory
exclusion

Reverse
waiver

Once an adult
always an adult

Juvenile

Criminal

15

15

29

24

34

14

18

n
n
n
n
n

n
n
n
n
n
n

n

n
n
n

n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n

n
n
n

n
n

n
n

n

n
n
n
n
n
n

n
n

n

n

n
n
n
n

n

n
n
n

n
n

n

n
n

n

n
n

n
n
n
n
n
n
n
n
n
n
n

n
n
n

n

n

n
n
n

n
n

n

n

n

n
n
n

n
n

n

n
n
n
n
n
n

n
n
n

n
n

n
n
n

n
n

n
n

n
n
n
n

n
n

n
n

n

n

n
n
n

n

n
n

n
n
n
n
n

Blended sentencing

Mandatory

n
n

n
n

n
n

n
n
n

n
n

n
n

n
n
n

n
n

n
n

n

n
n
n
n
n
n
n
n
n
n
n
n
n

n
n
n

n
n

n

n

n
n

n

n
n
n
n
n

Note: Table information is as of the end of the 2009 legislative session.

September 2011

3

Most states allow juvenile court judges to waive jurisdiction over
certain cases and transfer them to criminal court
State

Certain Certain Certain Certain
Any
person property
drug
weapon
criminal Certain Capital
offense felonies crimes Murder offenses offenses offenses offenses

Alabama

14

Alaska

NS

Arizona

NS

Arkansas

14

California

12

Dist. of Columbia

16
14

Georgia

15

Hawaii
Idaho

14

Illinois

13

Indiana
Iowa

14

Kansas

10

Kentucky

NS
13

NS

NS

14

10

15

NS

State laws may require
juvenile court judges to
waive jurisdiction in
certain cases

14

NS
14
12

14

14
15

14

North Carolina

13

13

14

14

14

14

14

13
16

14

Ohio

14

Oklahoma

NS

Oregon

15

Pennsylvania

14

Rhode Island

NS

16

South Carolina

16

14

South Dakota

NS

NS

NS

NS

NS

NS

15

NS
14

14

NS
16

Texas

14

Utah

14

Vermont
Virginia

14

14
10

10

10

NS

NS

NS

NS

NS

14

14

14

14

14

14
NS

West Virginia
Wisconsin

15

Wyoming

13

Notes: An entry in the column below an offense category means that there is at least one offense in that cat­
egory for which a juvenile may be waived from juvenile court to criminal court. The number indicates the
youngest possible age at which a juvenile accused of an offense in that category may be waived. “NS”
means no age restriction is specified for an offense in that category. Table information is as of the end of the
2009 legislative session.

4

In 15 states, presumptive waiver laws de­
fine a category of cases in which waiver
from juvenile to criminal court is pre­
sumed appropriate. Statutes in these
states leave the decision in the hands of a
judge but weight it in favor of transfer. A
juvenile who meets age, offense, or other
statutory thresholds for presumptive
waiver must present evidence rebutting
the presumption, or the court will grant
waiver and the case will be tried in crimi­
nal court.

16

13

New Hampshire

Washington

NS

14

Missouri

Tennessee

NS

14
14

Minnesota

North Dakota

13
NS

NS

Michigan

New Jersey

12

14

14

Maine

Nevada

12

14

15

Louisiana

Mississippi

14

NS

Florida

Maryland

14

16

Colorado
Delaware

14

In presumptive waiver
cases, the burden of
proof shifts to the
juvenile

Fifteen states require juvenile courts to
waive jurisdiction over cases that meet
specified age/offense or prior record crite­
ria. Cases subject to mandatory waiver are
initiated in juvenile court, but the court
has no other role than to confirm that the
statutory requirements for mandatory
waiver are met.
Functionally, a mandatory waiver law re­
sembles a statutory exclusion, removing a
designated category of cases from juve­
nile court jurisdiction. However, the juve­
nile court may retain power to make
necessary orders relating to appointment
of counsel, detention, and other prelimi­
nary matters.

Nonjudicial transfer
cases bypass juvenile
courts altogether
Only 15 states now rely solely on tradi­
tional hearing-based, judicially controlled
forms of transfer: Connecticut, Hawaii,
Kansas, Kentucky, Maine, Missouri, New
Hampshire, New Jersey, North Carolina,

National Report Series Bulletin

North Dakota, Ohio, Rhode Island, Ten­
nessee, Texas, and West Virginia. In these
states, all cases against juvenile-age of­
fenders (except those who have already
been criminally prosecuted once) begin in
juvenile court and must be literally trans­
ferred, by individual court order, to courts
with criminal jurisdiction.
In all other states, cases against some ac­
cused juveniles are filed directly in crimi­
nal court. Youth subject to direct criminal
filing in these states may nevertheless be
entitled to make an individualized case for
juvenile handling at “reverse waiver” hear­
ings before criminal court judges. Not all
states allow this, however, and others do
not allow it in some categories of cases.

Prosecutors’ discretion
to opt for criminal
handling is often
unfettered
Laws in 15 states designate some cate­
gory of cases in which both juvenile and
criminal courts have jurisdiction, so pros­
ecutors may choose to file in either one
court or the other. The choice is consid­
ered to be within the prosecutor’s execu­
tive discretion, comparable with the
charging decision.
In fact, prosecutorial discretion laws are
usually silent regarding standards, proto­
cols, or appropriate considerations for
decisionmaking. Even in those few states
where statutes provide some general
guidance to prosecutors, or at least re­
quire them to develop their own decisionmaking guidelines, there is no hearing, no
evidentiary record, and no opportunity for
defendants to test (or even to know) the
basis for a prosecutor’s decision to pro­
ceed in criminal court. As a result, it is
possible that prosecutorial discretion laws
in some places operate like statutory ex­
clusions, sweeping whole categories into
criminal court with little or no individual­
ized consideration.

September 2011

Some states designate circumstances in which the burden of proof in a
waiver hearing is shifted to the juvenile
State

Certain Certain Certain Certain
Any
person property
drug
weapon
criminal Certain Capital
offense felonies crimes Murder offenses offenses offenses offenses

Alaska
California
Colorado*
Dist. Of Columbia†
Illinois
Kansas†
Maine
Minnesota
Nevada†
New Hampshire
New Jersey
North Dakota
Pennsylvania
Rhode Island*
Utah

NS
14
12
15
14

14
12
15

14
12
15

NS

14
NS

15
14

14

14

15
15
14

16
14
15
14
14

15
14
14

14
15
14
14
14

14

16

16

15
14
14

14

14

NS
16

16

16

* In Colorado and Rhode Island, the presumption is applied against juveniles with certain kinds of histories.
† In the District of Columbia, Kansas, and Nevada, the presumption applies to any offense committed with a
firearm.
Notes: An entry in the column below an offense category means that there is at least one offense in that
category for which a juvenile is presumed to be an appropriate candidate for waiver to criminal court. The
number indicates the youngest possible age at which a juvenile accused of an offense in that category is
subject to the presumption. “NS” means no age restriction is attached to the presumption for an offense in
that category. Table information is as of the end of the 2009 legislative session.

In some states, waiver is mandatory once the juvenile court judge
determines that certain statutory criteria have been met
Certain
felonies

Capital
crimes

Connecticut

14

14

Delaware

15

State

Georgia
Illinois
Indiana

15
NS

Kentucky
Louisiana
New Jersey

14

Certain
drug
offenses
16

Certain
weapon
offenses

14
NS

NS

16

14

14

15

15
16

15
16

14

14

14

16

17

17

14

14

14

14

16

16

16

13

North Dakota
Ohio

Certain
property
offenses

16

16

North Carolina

Murder

Certain
person
offenses

14

Rhode Island
South Carolina
Virginia

14

West Virginia

14

14
16

14

Notes: An entry in the column below an offense category means that there is at least one offense in that
category for which waiver to criminal court is mandatory. The number indicates the youngest possible age
at which a juvenile accused of an offense in that category is subject to mandatory waiver. “NS” means no
age restriction is specified for an offense in that category. Table information is as of the end of the 2009 leg­
islative session.

5

Statutory exclusion laws
restrict juvenile courts’
delinquency jurisdiction
A total of 29 states have statutes that sim­
ply exclude some juvenile-age offenders
from the jurisdiction of their juvenile
courts, generally by defining the term
“child” for delinquency purposes to leave
out youth who meet certain age/offense or
prior record criteria. Because such youth
cannot by definition be “delinquent chil­
dren,” their cases are handled entirely in
criminal court.
Many states make no distinction between
minors and adults in enforcing traffic,
boating, hunting, fishing and similar laws
and ordinances—and may process all vio­
lations in criminal courts. Statutory exclu­
sion laws are different, however, in that
they make special exceptions for offend­
ing behavior that would otherwise be the
responsibility of juvenile delinquency
courts.
Murder is the offense most commonly
singled out by statutory exclusion laws. In
Massachusetts, Minnesota, and New Mex­
ico, exclusion laws apply only to accused
murderers. In all other states with exclu­
sion statutes, murder is included along
with other serious or violent felonies.
Some states exclude less serious offens­
es, especially where older juveniles or
those with serious delinquency histories
are involved. Montana law excludes
17-year-olds accused of a wide range of
offenses, including attempted burglary, at­
tempted arson, and attempted drug pos­
session. Mississippi excludes all felonies
that 17-year-olds commit as well as
armed felonies that juveniles 13 or older
commit. Utah excludes all felonies com­
mitted by 16-year-olds who have already
been securely confined once, and Arizona
excludes all felonies committed by those
as young as 15, provided they have previ­
ously been disposed as juveniles more
than once for felony-level offenses.

6

Some states allow prosecutors to file certain categories of cases in
juvenile or criminal court
State
Arizona
Arkansas
California
Colorado
Dist. of Columbia
Florida
Georgia
Louisiana
Michigan
Montana
Nebraska
Oklahoma
Vermont
Virginia
Wyoming

Any
Certain Certain Certain Certain
criminal Certain Capital
person property
drug
weapon
offense felonies crimes Murder offenses offenses offenses offenses
14
16
14
14
16

14
14
14
16
14

14
14
14
16
14

14
14
16
14

14

15
14
12

15
14
12

15
14
16

15
14
16

16

NS
16

15

15

15

16

15

14

14
14

14
14

14

16

14
14

NS
NS

14
16

14

16
13

Notes: An entry in the column below an offense category means that there is at least one offense in that category
that is subject to criminal prosecution at the option of the prosecutor. The number indicates the youngest possible
age at which a juvenile accused of an offense in that category is subject to criminal prosecution. “NS” means no age
restriction is specified for an offense in that category. Table information is as of the end of the 2009 legislative ses­
sion.

Many states exclude certain serious offenses from juvenile court
jurisdiction
State
Alabama
Alaska
Arizona
California
Delaware
Florida
Georgia
Idaho
Illinois
Indiana
Iowa
Louisiana
Maryland
Massachusetts
Minnesota
Mississippi
Montana
Nevada
New Mexico
New York
Oklahoma
Oregon
Pennsylvania
South Carolina
South Dakota
Utah
Vermont
Washington
Wisconsin

Any
Certain Certain Certain Certain
criminal Certain Capital
person property
drug
weapon
offense felonies crimes Murder offenses offenses offenses offenses
16

16

15

16
15
14

16
15
14

16

16
13
14
13
16

NS
13
14
15
16

16

16

14

14

15
16
14
16

15
16

17
NS
15
13
13
15
NS

17
16

17

13

14

15
15

16
14
16
10

14
16
10

15

15
16
16
14
13
16*

NS

16
16
16

13

16
16

15
16
16
16

17

17
14

14
16

* In Nevada, the exclusion applies to any juvenile with a previous felony adjudication, regardless of the current
offense charged, if the current offense involves the use or threatened use of a firearm.
Notes: An entry in the column below an offense category means that there is at least one offense in that category
that is excluded from juvenile court jurisdiction. The number indicates the youngest possible age at which a juvenile
accused of an offense in that category is subject to exclusion. “NS” means no age restriction is specified for an
offense in that category. Table information is as of the end of the 2009 legislative session.

National Report Series Bulletin

In most states, criminal
prosecution renders a
juvenile an “adult”
forever

Many states give courts
special flexibility in
handling youth subject
to transfer

the moving party. Moreover, even in states
that have a reverse waiver option, it is not
necessarily afforded to all transferred
youth: 10 states with reverse waiver laws
explicitly limit its availability.

There is a special form of “automatic”
transfer in 34 states for juveniles who
have previously been prosecuted as
adults. Most of these “once adult/always
adult” laws are comprehensive, mandating
criminal handling of all posttransfer of­
fenses. However, Maryland, Michigan,
Minnesota, and Texas have laws that apply
only to posttransfer felonies, whereas
Iowa, California, and Oregon require that
the juveniles involved be at least 16.

Even states with automatic or prosecutorcontrolled transfer laws often have com­
pensating mechanisms that introduce
some form of individualized judicial con­
sideration into the process.

Blended sentencing laws are also designed
to provide a measure of individualization
and flexibility in cases subject to transfer.

Generally, once adult/always adult laws
apply only to juveniles who were convict­
ed of the offenses for which they were
originally transferred. However, this is not
necessary in all states, at least if the origi­
nal transfer was based on an individual­
ized judicial determination.

The most straightforward of these correc­
tive mechanisms is the reverse waiver. A
total of 24 states have reverse waiver
laws, which allow juveniles whose cases
are filed in criminal court to petition to
have them removed to juvenile court, ei­
ther for trial or disposition. Criminal court
judges deciding reverse waiver motions
usually consult the same kinds of stan­
dards and weigh the same factors as their
juvenile court counterparts in discretion­
ary waiver proceedings—but the burden
of proof may be shifted to the juvenile as

Some states give juvenile courts power to impose criminal sanctions in
certain categories of cases
State

Any
Certain Certain Certain Certain
criminal Certain Capital
person property
drug
weapon
offense felonies crimes Murder offenses offenses offenses offenses

Alaska

16

Arkansas

14

Colorado

NS

NS

Connecticut

14

NS

Illinois

13

Kansas

NS

14

14

10

Massachusetts
Michigan

14
NS

NS

14
NS

NS

NS

Minnesota
Montana

14
12

NS

NS

NS

NS

New Mexico

14

14

14

14

Ohio

10

10

Rhode Island

NS

Texas

NS

NS

NS

14

NS

NS

Notes: An entry in the column below an offense category means that there is at least one offense in that category
for which a juvenile may receive a blended sentence in juvenile court. The number indicates the youngest possible
age at which a juvenile committing an offense in that category is subject to blended sentencing. “NS” indicates that,
in at least one of the offense restrictions indicated, no minimum age is specified. Table information is as of the end
of the 2009 legislative session.

September 2011

Laws in 18 states authorize their criminal
courts, in sentencing juveniles who have
been tried and convicted as adults, to im­
pose juvenile dispositions rather than
criminal ones under some circumstances.
Such “criminal blended sentencing” stat­
utes can function somewhat like reverse
waiver laws, returning transferred juve­
niles on an individual basis to the juvenile
correctional system for treatment and re­
habilitation. However, they often require
that a transferred juvenile receive a sus­
pended criminal sentence, over and above
any juvenile disposition. In any case, here
again, criminal blended sentencing is
commonly authorized only for a subset of
those youth who are criminally convicted.
Juvenile blended sentencing laws in 14
states are sometimes seen as providing a
“last chance” alternative for youth who
would otherwise be transferred. A youth
subject to the most common form of ju­
venile blended sentencing is tried in juve­
nile court and given a juvenile disposition
—but in combination with a suspended
criminal sentence. Although this may be
preferable to straight criminal handling,
the practical effects of juvenile blended
sentencing statutes are not well under­
stood. Because juvenile blended sentenc­
ing thresholds are actually lower than
transfer thresholds in most states, there is
a possibility that such laws, instead of
providing a mitigating alternative to trans­
fer, are instead being used for an “in­
between” category of cases that would
not otherwise have been transferred at all.

7

State transfer laws changed radically in the closing
decades of the 20th century
Before 1970, transfer in
most states was courtordered on a case-by­
case basis

“Automatic” transfer laws proliferated in the decades after 1970 …

Pre-1970:

Laws allowing juvenile courts to waive ju­
risdiction over individual youth, sending
“hard cases” to criminal courts for adult
prosecution, could be found in some of
the earliest juvenile codes and have al­
ways been relatively common. Most states
had enacted such judicial waiver laws by
the 1950s, and they had become nearly
universal by the 1970s.
For the most part, these laws left transfer
decisions to the discretion of juvenile
court judges. Laws that made transfer
“automatic” for certain categories—either
by mandating waiver or by requiring that
some charges be filed initially in criminal
court—were rare and tended to apply only
to rare offenses such as murder or capital
crimes. Before 1970, only eight states had
such laws.
Laws giving prosecutors the option to
charge some juveniles in criminal court
were even rarer. Only two states—Florida
and Georgia—had prosecutorial discretion
laws before 1970.

DC

"Automatic"
transfer laws (8)

1985:

DC

"Automatic"
transfer laws (20)

2000:

States adopted new
transfer mechanisms in
the 1970s and 1980s
During the next two decades, automatic
and prosecutor-controlled forms of trans­
fer proliferated steadily. In the 1970s
alone, five states enacted new prosecuto­
rial discretion laws, and seven more
states adopted some form of automatic
transfer.
By the mid-1980s, nearly all states had ju­
dicial waiver laws, 20 states had automat­
ic transfer laws, and 7 states had
prosecutorial discretion laws.

8

DC

"Automatic"
transfer laws (38)

Sources: Pre-1970 and 1985 maps adapted from Feld’s The Juvenile Court Meets the Principle of the Offense: 

Legislative Changes to Juvenile Waiver Statutes and Hutzler’s Juveniles as Criminals: 1980 Statutes Analysis.


National Report Series Bulletin

The surge in youth
violence that peaked in
1994 helped shape
current transfer laws
… as did prosecutorial discretion laws
Pre-1970:

DC

Prosecutorial
discretion laws (2)

1985:


DC

Prosecutorial
discretion laws (7)

2000:


DC

Prosecutorial
discretion laws (15)

Sources: Pre-1970 and 1985 maps adapted from Feld’s The Juvenile Court Meets the Principle of the Offense: 

Legislative Changes to Juvenile Waiver Statutes and Hutzler’s Juveniles as Criminals: 1980 Statutes Analysis.


September 2011

State transfer laws in their current form are
largely the product of a period of intense
legislative activity that began in the latter
half of the 1980s and continued through
the end of the 1990s. Prompted in part
by public concern and media focus on
the rise in violent youth crime that began
in 1987 and peaked in 1994, legislatures
in nearly every state revised or rewrote
their laws to lower thresholds and broad­
en eligibility for transfer, shift transfer
decisionmaking authority from judges to
prosecutors, and replace individualized
discretion with automatic and categorical
mechanisms.
Between 1986 and the end of the 1990s,
the number of states with automatic
transfer laws jumped from 20 to 38, and
the number with prosecutorial discretion
laws rose from 7 to 15. Moreover, many
states that had automatic or prosecutorcontrolled transfer statutes expanded their
coverage in such a way as to change their
essential character. In Pennsylvania, for
example, an exclusion law had been on
the books since 1933—but had applied
only to cases of murder. Amendments
that took effect in 1996 transformed what
had been a narrow and rarely used safety
valve into a broad exclusion covering a
long list of violent offenses.

In recent years, transfer
laws have changed little
Transfer law changes since 2000 have
been minor by comparison. No major new
expansion has occurred. On the other
hand, states have shown little tendency to
reverse or even reconsider the expanded
transfer laws already in place. Despite the
steady decline in juvenile crime and vio­
lence rates since 1994, there has as yet
been no discernible pendulum swing away
from transfer.

9

For every 1,000 petitioned delinquency cases, about
9 are judicially waived to criminal court
Juvenile court data
provide a detailed
picture of waiver in
the U.S.
Each year juvenile courts provide detailed
delinquency case processing data to the
National Juvenile Court Data Archive that
the National Center for Juvenile Justice
maintains. Using this information, NCJJ
generates annual estimates of the number
and characteristics of cases that juvenile
court judges waive to criminal court in the
nation as a whole. In 2007, using data
contributed by more than 2,200 juvenile
courts with jurisdiction over 81% of the
nation’s juvenile population, juvenile
courts are estimated to have waived juris­
diction in about 8,500 cases—less than
1% of the total petitioned delinquency
caseload.
Nearly half of all cases judicially waived to
criminal court in 2007 involved a person
offense as the most serious charge. Youth
whose cases were waived were over­
whelmingly males and tended to be older
teens. Although a substantial proportion
(37%) of waivers involved black youth, ra­
cial disparity in the use of judicial waiver
has diminished. In 1994, juvenile courts
waived cases involving black youth at 1.5
times the rate at which cases involving
white youth were waived. By 2007, the
disparity was reduced to 1.1 times the
white rate.

The use of judicial
waiver has declined
steeply since 1994
The number of judicially waived cases hit
a historic peak in 1994—when about
13,100 cases were waived—and has
fallen 35% since that year. There are two
sets of causes that might account for this
trend:

10

The likelihood of judicial waiver among petitioned delinquency cases
was lower in 2007 than in 1994 for all offense categories and demo­
graphic groups
Profile of judicially waived
delinquency cases

Offense/demographic

1994

Percentage of petitioned cases
judicially waived to criminal court

2007

1994

2007

13,100

8,500

Total cases waived

13,100

8,500

Most serious offense

100%

100%

Person

42

48

2.6%

1.7%

Property

37

27

1.1

0.7

Drugs

12

13

2.1

1.0

9

11

0.6

0.3

100%

100%

95

90

1.7

1.1

5

10

0.4

0.4

Age at referral

100%

100%

15 or younger

13

12

0.3

0.2

16 or older

87

88

3.0

1.7

Public order
Gender
Male
Female

Race/ethnicity

100%

100%

White

53

59

1.2

0.9

Black

44

37

1.8

1.0

Note: These data on cases judicially waived from juvenile court to criminal court do not include cases filed
directly in criminal court via other transfer mechanisms.
Source: Authors’ analysis of Puzzanchera et al.’s Juvenile Court Statistics 2007.

n	 Decreases in juvenile violent crime

reduced the need for waiver. Juvenile
arrests for most crimes, and particu­
larly for Violent Index offenses, have
fallen almost every year since 1994.
Because judicial waiver has historically
served as a mechanism for removing
serious and violent offenders from a
juvenile system that was seen as illequipped to accommodate them, a
reduction in serious and violent crime
should naturally result in some reduc­
tion in the volume of waivers.
n	 New transfer mechanisms displaced

waiver. The nationwide proliferation
and expansion of nontraditional trans­
fer mechanisms also may have con­
tributed to the reduction in waivers.
In states with prosecutorial discretion
or statutory exclusion laws, cases

involving juvenile-age offenders can
originate in criminal courts, bypassing
the juvenile courts altogether. During
the 1990s, law revisions in most states
exposed more youth to these forms of
transfer. Because these new laws were
generally operating already by the mid­
1990s, many juveniles who would pre­
viously have been candidates for waiv­
er were subject to nonwaiver transfer
instead. Overall transfer volume after
1994 could have stayed the same—or
even continued to rise—even as waiver
volume declined.
It is probable that both of these causes
were at work and that declining waiver
numbers reflect both overall juvenile
crime trends and the diminished impor­
tance of judicial waiver relative to other
transfer mechanisms.

National Report Series Bulletin

Juvenile arrest and judicial waiver trends for serious violent offenses had similar patterns over the past two
decades
Number of arrests
160,000

Number of cases
5,000

140,000

4,500
4,000

120,000

3,500

100,000
80,000

Juvenile Violent Crime Index arrests

60,000
40,000
20,000
0
1985 1987 1989 1991 1993 1995 1997 1999 2001 2003 2005 2007

3,000
2,500
2,000
1,500
1,000

Judicially waived Violent Crime Index cases

500
0
1985 1987 1989 1991 1993 1995 1997 1999 2001 2003 2005 2007

* The Violent Crime Index includes the offenses of murder and nonnegligent manslaughter, forcible rape, robbery, and aggravated assault.

n From the mid-1980s to the peak in 1994, the number of juvenile arrests for Violent Crime Index offenses nearly doubled and then declined substantially through
2004 (down 39%). This decade-long decline was followed by an 11% increase over the next 2 years, and then a 4% decline between 2006 and 2007.
n Similarly, the number of cases judicially waived for Violent Crime Index offenses tripled between 1988 and 1994 and then declined 57% through 2003. Between
2003 and 2007, the number of cases waived increased 47%.
Sources: Authors’ analyses of FBI unpublished reports for 1980 through 1997, the FBI’s Crime in the United States reports for 1998 through 2007, and Sickmund et al.’s Easy
Access to Juvenile Court Statistics 2007.

September 2011

11

National information on juvenile cases filed directly
in criminal court is fragmentary
No national data set
tracks cases that bypass
juvenile courts
No data source exists that is comparable
to the National Juvenile Court Data Ar­
chive for nonwaiver cases—those in
which juveniles are processed in criminal
court as a result of statutory exclusions or
prosecutors’ discretionary choices. Be­
cause they are filed in criminal court like
other cases, involve defendants who are
“adults” at least for criminal handling pur­
poses, and represent an insignificant pro­
portion of the criminal justice system’s
overall caseload, juvenile cases originating
in criminal court can be very difficult to
isolate statistically. Legal, definitional, and
reporting variations from state to state
also make it hard to aggregate what infor­
mation is available. Although several fed­
erally sponsored criminal processing data
collection efforts have shed some light on
cases involving juvenile-age offenders, to
date none has been designed to yield reli­
able national estimates of the overall vol­
ume and characteristics of these cases.
As a result, at the national level, a big part
of the picture of transfer is missing.

BJS research provides
glimpses of transfer
case characteristics
Available national statistics on criminal
processing of juveniles come primarily
from a handful of large-scale data gather­
ing efforts that the federal Bureau of Jus­
tice Statistics (BJS) sponsors. Both the
State Court Processing Statistics (SCPS)
program and the National Judicial Report­
ing Program (NJRP) periodically collect
detailed information on felony cases in
state criminal courts. Special analyses of
data from both programs have yielded in­
formation on the relatively small subset of

12

felony cases that involve youth. The BJSsponsored National Survey of Prosecutors
(NSP) has likewise been used to collect
basic information on criminal prosecution
of juveniles in the states.
The SCPS collects demographic, offense,
processing, and sentencing information
on felony defendants from a sample of 40
large urban jurisdictions that are repre­
sentative of the nation’s 75 largest coun­
ties. For the 1998 SCPS, BJS used an
oversampling technique to capture suffi­
cient information on criminally processed
juveniles to support a special analysis of
this subgroup. Although it did not pro­
duce a sample that was representative of
the nation as a whole—and so cannot tell
us about juveniles charged in criminal
court with misdemeanors rather than felo­
nies, or those processed outside the
nation’s 75 largest counties—the study
did provide useful insight into urban
transfer cases in which serious offenses
are alleged:
n	 Volume. About 7,100 juveniles were

criminally processed for felonies in the
40 sampled counties during 1998.
n	 Transfer mechanism. Less than a

quarter of the cases reached criminal
court via judicial waiver. More com­
mon were exclusion cases (42%) and
prosecutorial direct files (35%).
n	 Charges. The most serious charge at

arrest in about half of the cases was
either robbery (31%) or assault (21%).
The next most common charges were
drug trafficking (11%) and burglary (8%).
n	 Demographics. Defendants were over­

whelmingly male (96%) and predomi­
nantly black (62%).
The NJRP collects information on felony
sentences in state courts. The 1996 NJRP

collected data from 344 counties, generat­
ing a subsample of juvenile-age felony
cases that, while not statistically represen­
tative of all transferred juveniles, was
large enough to enable researchers to ex­
plore ways in which juvenile cases dif­
fered from those of other convicted
felons.
Compared with adult felons, the special
analysis found, transferred juveniles were
more likely than their adult counterparts
to be male (96% versus 84%) and black
(55% versus 45%). Juveniles were more
likely than adults to have a person offense
as their most serious offense at convic­
tion (53% versus 17%) and far less likely
to have a drug offense (11% versus 37%).

The majority of juvenile felony
defendants in the 75 largest
counties reached criminal court
through nonjudicial transfer
Demographic

Percentage of
juvenile felony
defendants

Volume

7,100

Transfer mechanism
Judicial waiver
Prosecutor direct file
Statutory exclusion

100.0%
23.7
34.7
41.6

Most serious charge
Violent offense
Property offense
Drug offense
Public order offense

100.0%
63.5
17.7
15.1
3.5

Gender
Male
Female

100.0%
95.8
4.2

Race
White
Black
Other
Hispanic

100.0%
19.9
62.2
1.8
16.2

Source: Authors’ adaptation of Rainville and
Smith’s Juvenile Felony Defendants in Criminal
Courts: Survey of 40 Counties, 1998.

National Report Series Bulletin

Most prosecutors’
offices report trying
juveniles as adults
The NSP is a regular BJS-sponsored sur­
vey of chief prosecutors who try felony
cases in state courts of general jurisdic­
tion. Its primary purpose is to collect
basic information on office staffing, fund­
ing, caseloads, etc., but several recent
surveys have asked respondents whether
their offices proceeded against juveniles
in criminal court and, if so, how many
such cases were prosecuted in the 12
months preceding the survey. The 2005
NSP, which was a survey of a nationally
representative sample of 310 prosecutors,
found that about two-thirds of prosecu­
tors’ offices tried juveniles in criminal
court. On the basis of the 2005 respons­
es, it was estimated that about 23,000
juvenile cases had been criminally prose­
cuted nationwide during the 12 months
preceding the survey.
Although the NSP information is useful as
a starting point in assessing the criminal
processing of youth, it must be handled
with a certain amount of caution. Respon­
dents were asked to give either the actual
number of criminally prosecuted juvenile
cases over the preceding 12-month period
or their best estimates, but there is no
way of knowing the basis for any esti­
mates provided. In any case, the informa­
tion elicited gives only an aggregate case
total and does not contribute to under­
standing the characteristics or processing
of those cases.

September 2011

Transferred juvenile felons were far more likely than adult felons to be
convicted of violent offenses
Transferred
juvenile felons

Adult felons

Most serious felony charge
Violent offense
Property offense
Drug offense
Weapons offense
Other offense

100%
53
27
11
3
6

100%
17
30
37
3
14

Gender
Male
Female

100%
96
4

100%
84
16

Race
White
Black
Other

100%
43
55
2

100%
53%
45
2

Demographic

Source: Authors’ adaptation of Levin, Langan, and Brown’s State Court Sentencing of Convicted Felons, 1996.

A new BJS survey will help fill information gaps
on criminal processing of juveniles nationally
BJS recently awarded a new national
survey effort to Westat and subcontrac­
tor, the National Center for Juvenile
Justice, with the goal of generating ac­
curate and reliable case processing sta­
tistics for juveniles charged as adults.
The Survey of Juveniles Charged as
Adults in Criminal Courts will be the
first effort of its kind that focuses sole­
ly on generating national data on youth
in criminal court; it is likely to contrib­
ute substantially to the knowledge re­
garding the criminal processing of

youth. Drawing from a sample of felony
and misdemeanor cases filed against
youth in criminal courts who were
younger than 18—including both trans­
fer cases and cases involving youth
who are considered adults under their
states’ jurisdictional age laws—the sur­
vey will gather information on offender
demographics and offense histories, ar­
rest and arraignment charges, transfer
mechanisms, and case processing and
disposition.

13

Most states do not track and account for all of their
juvenile transfer cases
The Transfer Data
Project documented
state transfer reporting
practices
In the absence of any one data source that
would make it possible to arrive at an ac­
curate estimate of the number of juvenileage offenders prosecuted in criminal
courts nationwide, it is necessary to look
instead to a variety of state sources. Un­
fortunately, information from these scat­
tered sources is fragmentary, hard to find,
and harder to analyze.
In an effort to document reliable sources
of state-level data on juvenile transfers,
identify crucial gaps in available informa­
tion on transferred youth and, if possible,
fill in the national data picture on transfer,
NCJJ conducted a Transfer Data Project in
2009. The project, a component of the
OJJDP-funded National Juvenile Justice
Data Analysis Project, began with a struc­
tured search for any published or online
reports that official sources regularly is­
sued within the 1995–2009 time frame
and containing any state-level statistics on
criminal prosecution of juveniles. Follow­
ing this initial search, project staff con­
ducted a snowball survey of likely data
keepers in individual states, including
contributors to the National Juvenile Court
Data Archive, asking for further informa­
tion, clarification, and leads. In all, 63
officials were contacted via e-mail and
telephone followups, including representa­
tives of state juvenile justice agencies,
state judicial administrative offices, state
prosecutors’ agencies, and state statistical
analysis centers. Most state respondents
referred NCJJ staff to published reports
containing pertinent statistics, redirected
queries to other state officials, or con­
firmed that the information sought was
not collected at the state level. However,
officials in nine states were able to supply

14

NCJJ directly with transfer numbers that
resided in state information systems or
had otherwise been collected at the state
level but were not made available in public
reports.
These data were analyzed along with
state-published statistics on transfer,
yielding the most complete picture cur­
rently available of juvenile transfer and
transfer-reporting practice in the states.
In addition to being summarized in this
report, project findings regarding state
transfer and reporting practice will be
incorporated into the online summary of
state transfer laws found on OJJDP’s
Statistical Briefing Book Web site, http://
ojjdp.gov/ojstatbb/structure_process/
faqs.asp.

Only 13 states publicly
report all transfers
From the information that the Transfer
Data Project assembled, it appears that
only a small minority of states currently
track and report comprehensive informa­
tion regarding criminal prosecutions of ju­
veniles. Indeed, only 13 states were
identified as publicly reporting even the
total number of their transfers, including
cases of juveniles who reach criminal
courts as a result of statutory exclusions
or prosecutors’ discretionary choices as
well as judicial waiver decisions. States
that publish information on the offense
profiles or demo-graphic characteristics of
these youth, or provide details regarding
their processing or sentencing, are even
rarer.
With respect to their reporting of the
number of transfers only, states fall into
four categories:
n	 Publicly report all transfers (13

states). A few of these states report
only a bare annual total—the number

of criminally prosecuted youth, the
number of criminal cases involving
youth, or both—but most report
something more, such as age, race, or
gender information on transferred
youth, how they reached criminal
court, what their offenses were, or how
their cases were resolved.
n	 Publicly report some but not all trans­

fers (10 states). Commonly, these
states report the number of cases that
are sent to criminal court, following
waiver proceedings in juvenile court,
but not the number that are filed
directly in criminal court.
n	 Contribute data to the National

Juvenile Court Data Archive but do
not otherwise report transfers (14
states). States that contribute annual
juvenile case processing data to the
Archive that NCJJ maintains are, in
effect, reporting information on judi­
cially waived cases, although not to the
public. NCJJ uses these data to pre­
pare national waiver estimates but
does not publish individual state waiv­
er totals. Accordingly, Archive report­
ing does not help the field and mem­
bers of the public understand how
individual states’ waiver laws are oper­
ating in practice.
n	 Do not report transfers at all (14

states). These states do not contribute
data on waived cases to the Archive,
and NCJJ was unable to locate any
other official reports containing their
waiver and/or transfer totals. However,
officials in five of these states respond­
ed to NCJJ’s information requests by
sharing recent data on transfer cases
—which suggests that they already
collect the pertinent information at the
state level or, at least, are capable of
collecting it.

National Report Series Bulletin

About half of the states publicly report at least some information
regarding criminal prosecutions of juveniles

State

Publicly report
all transfers

Publicly report
some but not
all transfers

Contribute to the
National Juvenile
Court Data Archive
but do not otherwise
report transfers

13

10

14

Number of states
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
District of Columbia
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming

14

n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n

Relatively speaking, states do a better job
of tracking cases that originate in juvenile
court and are transferred to criminal court
on an individualized basis. Transfer cases
that bypass juvenile courts altogether are
more commonly “lost” in states’ general
criminal processing statistics:
n	 Of the 46 states that have judicial

waiver laws, 20 publicly report annual
waiver totals and 13 more report waiv­
ers to the National Juvenile Court Data
Archive.
n	 By contrast, of the 29 states with stat­

utory exclusion laws requiring criminal
prosecution of some juveniles, only 2
publicly report the total number of
excluded cases, and 5 others report a
combined total of all criminally prose­
cuted cases, without specifying the
transfer mechanism employed.

n
n

n	 Of the 15 states that have prosecutorial

n

discretion laws, only 1 publicly reports
the total number of cases filed in crim­
inal court at prosecutors’ discretion,
and 4 others report an undifferentiated
total of all criminally prosecuted cases.

n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n

Note: Table information is as of 2009.

September 2011

Do not report
transfers at all

States are more likely to
track judicial waiver
cases than other kinds
of transfers

n
n
n

The scarcity of information on cases in­
volving youth prosecuted under exclusion
and prosecutorial discretion laws presents
a serious problem for those wishing to
assess the workings, effectiveness, and
overall impact of these laws. Even the few
states that provide a count of excluded or
direct-filed cases seldom report the kind
of demographic, offense, sentencing, and
other detail that is needed to inform judg­
ments about whether laws entrusting
transfer decisions to prosecutors rather
than judges are being applied fairly and
consistently. It is not clear whether these
laws are targeting the most serious of­
fenders and resulting in the kinds of sanc­
tions lawmakers intended. And if these

15

laws are operating as intended in one
state, are they doing so in all the states
that rely on such provisions?
The absence of information on cases
transferred at prosecutors’ discretion is
particularly troubling. Some prosecutorial
discretion laws are very broadly written.
For example, in Nebraska and Vermont—
neither of which currently publish annual
transfer statistics—any youth who is at
least 16 may be prosecuted as an adult at
the prosecutor’s option, regardless of the
offense alleged. However, even states that
limit prosecutors’ discretionary authority
to cases involving serious offenses do not
thereby eliminate the possibility of unfair
or inappropriate use of the authority.
Because statutory exclusion laws apply
automatically to all juveniles who come
within their provisions, they present less
danger of inconsistent, unfair, or inappro­
priate enforcement. However, even appar­
ently neutral laws may, in practice, fall
more heavily on certain groups. Again,
many exclusion laws apply to very broadly
defined categories—all felony-grade
offenses, for example, or all offenses in
high-volume categories like assaults, rob­
beries, burglaries, and drug offenses—
that may, in practice, cover a variety of
actual crime scenarios, from the very seri­
ous to the relatively trivial. Whether or not
exclusion laws are working as intended—
increasing the likelihood of prosecution,
conviction, incarceration, and long sen­
tences, and serving as a deterrent—is a
question of fact that cannot be answered
without more information than is general­
ly available at present. Additional data are
also needed to determine whether exclu­
sion laws (1) impact certain groups more
than others, (2) impact large numbers of
youth whose offense profiles may be less
serious than those originally envisioned,
or (3) work differently from one state to
another.

Few states publicly report data on cases transferred by statutory
exclusion or prosecutorial discretion

State

Has
judicial
waiver

Number of states

46

Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
District of Columbia
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming

n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n

Reports Reports
judicial
judicial Has prose­
waiver to waiver to cutorial
public
Archive discretion

n
n
n
n

20

28

n

n
n
n

n

n

Reports
Reports
statutory
Has
statutory
discretion statutory exclusion
to public exclusion to public

15

5

k

29
n
n
n

n
n
n
n

k

k

n

k

7

n
n
n

n
n
n
n

n
n
n

k

n
n
n
n

l
n
n
n
n

n

n
n
n
n

n

k

l

n
n
n

n

n
n
n

n
n
n

n
n
n

n
n

n

k

n

k

n

n
n
n

n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n

n
n
n
k
n
n
n
n

n
n

n
n
n
n
n
n

n

k

n
n

n
n
n
n
n
n
n

n
n
n

n
n

n
n
n

n

n
n

l Partial reporting (not all jurisdictions).
k Combined total of transfer mechanisms (not separated out).
Note: Table information is as of 2009.

16

National Report Series Bulletin

There are wide variations in the ways states
document juvenile transfers
Only a few states report
significant details about
transfer cases
The Transfer Data Project’s search for offi­
cial state data on youth prosecuted as
adults uncovered a broad range of ap­
proaches to reporting on transfers, partic­
ularly in terms of the completeness and
level of detail of the information reported.
Arizona, California, and Florida can be re­
garded as exemplary states when it
comes to collecting and regularly report­
ing detailed statistics on juveniles tried as
adults. Although they do not report exact­
ly the same things in the same ways, they
do provide the field and the public with
most of the basic information needed to
assess the workings and impact of their
juvenile transfer laws. Most other states—
even among those that regularly track and
report their annual juvenile transfer totals—report far fewer details regarding
those cases.
Although there is no one “right” way to
report information on juvenile transfer
cases, reasonably complete documenta­
tion could be expected to cover each of
the following general categories:
n	 Total volume. As noted previously,

only 13 states report the total number
of cases in which juvenile-age offend­
ers are prosecuted in criminal court,
the total number of juveniles prosecut­
ed, or both.
n	 Pathways. Of these 13 states, 5 pro­

vide information showing how transfer
cases reached the criminal system—
whether by way of judicial waiver,
prosecutors’ discretionary decisions,
or as a result of statutory exclusions.
In six others, judicial waiver was the
only transfer mechanism available.

September 2011

n	 Demographics. Eight of the 13 states

provide age, race/ethnicity, gender, or
other demographic information on
criminally prosecuted youth.
n	 Offenses. Only three of these states

provide information on the offenses for
which youth were transferred.
n	 Processing outcomes. Only one of

these states—California—reports
information on criminal court handling
and disposition of transfer cases.

Available data show
dramatic differences in
states’ transfer rates
Although the national picture is far from
complete, rough comparisons among the
subset of states that do track total trans­
fers make it clear that there are striking
variations in individual states’ propensity
to try juveniles as adults, even when dif­
ferences in juvenile population sizes are
taken into account.

Some state-to-state differences in per
capita transfer rates are undoubtedly
linked to differences in jurisdictional age
boundaries. The lowest transfer rates
among the 13 full-reporting states tend to
be found in the states that set lower age
boundaries for criminal court jurisdiction
(Michigan, Missouri, North Carolina, and
Texas). In these states, 17-year-olds (or in
the case of North Carolina, 16- and
17-year-olds) must be taken out of the
mix: They cannot be “transferred” for
criminal prosecution because they are al­
ready within the original jurisdiction of the
criminal courts. That leaves a transfereligible population that is younger and
statistically less likely to be involved in se­
rious offending. (Of course, if one were
simply measuring the extent to which
states criminally prosecute youth who are
younger than 18, these states’ rates would
be among the highest.)
Differences in state transfer rates may
also be explained, in part, by broad differ­
ences in the way transfer mechanisms

Offense and processing information on transfers is rarely reported
State

Offenses

Processing
outcomes

8

3

1

n

n

Total volume

Pathways

Number of states

13

11

Arizona
California
Florida
Kansas
Michigan
Missouri
Montana
North Carolina
Ohio
Oregon
Tennessee
Texas
Washington
k Waiver-only states.

n

n

n

n

n

n

n

n

n

n

n

k

n

n

n

k

n

Demographics

n

n
n

n

k

n

k

n

n
n

n

k

n

k

n

n

n

Note: Table information is as of 2009.

17

work. In the six reporting states (Kansas,
Missouri, North Carolina, Ohio, Tennes­
see, and Texas) that have only judicial
waiver laws—even including those in
which some waivers are mandated—aver­
age transfer rates are generally lower than
those in the remaining seven states,
which have statutory exclusion laws,
prosecutorial discretion laws, or both.
However, it can be difficult to account for
state transfer rate variations on the basis
of legal structures alone. For instance,
Tennessee appears to transfer juveniles
far more often than Kansas (although
both are waiver-only states) and, if any­
thing, Tennessee law imposes more re­
strictions on the juvenile court’s power to
waive jurisdiction.
Average annual transfer rate,* 2003–2008:
Florida
Oregon
Arizona
Tennessee
Montana
Kansas
Washington
Missouri
California
Ohio
Michigan
Texas
North Carolina

164.7
95.6
83.7
42.6
41.6
25.3
21.2
20.9
20.6
20.4
12.4
8.6
7.1

states with large urban centers, significant
crime, and a broadly similar array of
transfer laws, official reports from the
three states make clear that they have
markedly different approaches to transfer.
Overall rates. The three states differ dra­
matically in their per capita transfer
rates—with Florida being the clear outlier.
Over the period from 2003 through 2008,
Florida transferred youth at about twice
the rate of Arizona and about eight times
the rate of California. (In fact, Florida’s
rate was about five times the average
transfer rate in the other 12 states that
publicly reported total transfers during
this period.) One part of the explanation is
undoubtedly Florida’s expansive prosecu­
torial discretion law, which permits prose­
cutors to opt for criminal handling of,
among others, all 16- and 17-year-olds
accused of felonies. (Only Nebraska
and Vermont give prosecutors more

Detailed transfer
reporting in some
states makes indepth
comparison possible
Because they document their juvenile
transfers more thoroughly than other
states, data from Arizona, California, and
Florida provide a considerably more nu­
anced picture of transfer in practice. Even
though all three are populous “sunbelt”

18

Transfer pathways. Although Florida has
an extremely broad and flexible judicial
waiver provision—authorizing waiver for
any offense, providing the juvenile was at
least 14 at the time of commission—judi­
cial waiver is a relatively insignificant
transfer mechanism there, accounting for
only about 4% of total transfers from
2003 to 2008. In Arizona, 14% of trans­
fers came by way of waiver, but waivers
steadily declined over that period, both in
absolute terms and as a proportion of
total transfers.
In California, by contrast, about 40%
of transfers from 2003 to 2008 were

California reports detailed case-processing outcomes for transferred youth

Convictions
3,407
(74%)

*Cases per 100,000 juveniles ages 10 to upper age of
juvenile court jurisdiction.
Notes: Table is intended for rough comparison only.
Unit of count varies from state to state. Some states
report by fiscal year, some by calendar year. Transfer
volume was unavailable for Montana in 2005, 2006,
and 2008 and for Washington in 2008.

discretionary authority.) However, both
Arizona and California prosecutors also
have broad prosecutorial discretion provi­
sions, suggesting that aggressive use of
prosecutorial discretion in Florida may be
a factor as well.

Adult
dispositions
(2003–2008)
4,604

Acquitted
23
(0.5%)
Dismissal/
diversion
1,112
(24%)

Prison/Youth
Authority sentence
1,455
(43%)
Probation
296
(9%)
Probation with jail
1,136
(33%)
Jail
68
(2%)

Certified to
juvenile court
62
(1%)

Fine
333
(10%)
Other/not reported
110
(3%)

Source: Authors’ analyses of California Office of the Attorney General reports available online.

National Report Series Bulletin

waivers. California prosecutors may make
a motion for “fitness hearings” for any
16- or 17-year-old, regardless of the of­
fense alleged, and for younger offenders
accused of more serious offenses. More­
over, where youth are accused of serious
offenses or have serious prior records,
they may be presumed to be unfit for ju­
venile court handling and must affirma­
tively prove otherwise. Perhaps because
this shifting of the burden of proof makes
the fitness hearing route easier for prose­
cutors, it is frequently used and is fre­
quently successful: 71% of all fitness
hearings from 2003 to 2008 resulted in
remand to criminal court.
Demographics. In 2008, a majority of
transfers involved youth who were at least
age 17 in Florida (65%), Arizona (55%),
and California (56%), but the racial and

September 2011

ethnic mix was quite different. In Florida,
most transferred youth in 2008 were
black (54%), whereas whites (29%) and
Hispanics (12%) were considerably un­
derrepresented. By contrast, transfers
were predominantly Hispanic in Arizona
(57%) and California (56%).
Offenses. In all three states, the vast ma­
jority of transfers involved felonies rather
than misdemeanors. In 2008, 98% of re­
ported transfers in Arizona, 89% in Cali­
fornia, and 94% in Florida involved
felonies, but transfer offenses in the three
states differed substantially. In Florida,
only 44% of reported 2008 transfers in­
volved person offenses, whereas 31%
involved property offenses and 11% in­
volved drug offenses. Transfers were far
more likely to involve person offenses in
Arizona (60%) and California (65%).

Transfers for property offenses were less
common in those states (25% in Arizona,
15% in California), as were transfers for
drug offenses (6% in Arizona, 4% in Cali­
fornia).
Case outcomes. As noted above, no com­
parison is possible among the three states
with regard to the crucial issue of what
happens to transferred youth—only Cali­
fornia reports processing outcomes in
transfer cases. However, because pro­
cessing outcome information on transfer
cases is so rare, it is worth noting that,
over the period from 2003 through 2008,
about three-quarters of cases involving ju­
veniles disposed in California’s criminal
courts resulted in convictions. Following
conviction, youth were sentenced to some
form of incarceration (in a prison, jail, or
California Youth Authority facility) in al­
most 8 of 10 cases.

19

Nearly 14,000 transfers can be accounted for in
2007—but most states are missing from that total
The size of the gaps in
available transfer data
can be broadly estimated
On the basis of juvenile court case pro­
cessing data reported to the National
Juvenile Court Data Archive, 8,500 judicial
waivers are estimated to have occurred
nationwide in 2007. The six states that
track and report all of their nonjudicial
transfers as well—Arizona, California,
Florida, Michigan, Oregon, and Washing­
ton—reported an additional 5,096 nonjudicial transfer cases in 2007. Unpublished
state-level information that Idaho provided
to the Transfer Data Project contributed
some 20 additional nonjudicial transfers
to the 2007 total of 13,616.
A great deal is missing from this total,
however—including nonjudicial transfers
in the 29 other states that have statutory
exclusion or prosecutorial discretion laws
but do not publish statistics on criminal
prosecution of juveniles and were not able
to provide the Transfer Data Project with
data from which 2007 totals could be de­
rived. These 29 states fall into three basic
groups.
States with extremely narrow nonjudicial
transfer laws. In five of these states,
transfer by means other than judicial
waiver must be a very rare event. Massa­
chusetts, Minnesota, and New Mexico
have statutory exclusion provisions, but
they apply only to juveniles accused of
homicide. Utah has an exclusion law that,
apart from homicide cases, covers only
felonies that inmates in secure custody
commit. Wisconsin’s exclusion applies
only to homicides and cases involving as­
saults committed against corrections,
probation, and parole personnel. Even
without knowing more, the authors can
predict that the contribution to the na­
tion’s nonjudicial transfer total from these
five states would be insignificant.

20

States with extremely broad nonjudicial
transfer laws. At the other extreme, laws
in two states—Nebraska and Vermont—
authorize criminal prosecution of any 16or 17-year-old youth, at the prosecutor’s
option, regardless of the offense alleged.
In a third state—Wyoming—prosecutors
have discretion to prosecute all misde­
meanants in criminal court, as long as
they are at least 13 years old. Laws of this
exceptionally broad type are likely to gen­
erate large numbers of transfer cases,
even though the states involved are not
populous ones. In fact, criminal court data
from Vermont, analyzed by NCJJ as part
of a one-time study for that state’s Agency
for Human Services, found nearly 1,000
cases in which 16- and 17-year-old Ver­
mont youth were handled as adults in a
single year—a contribution to the nation’s

transfer total that would be comparable to
California’s published total in a typical
year.
Other states. In the remaining 21 states,
nonjudicial transfer provisions are much
broader in scope than those in the first
group but not so broad as those in the
second. Youth are subject to nonjudicial
transfer in these states for a range of of­
fenses or offense types, all far more com­
mon than homicide. Nevertheless, they
must meet some minimum threshold of
offense seriousness. Some states within
this middle group list specific offenses
qualifying for nonjudicial transfer. In oth­
ers, nonjudicial transfer laws do not mere­
ly apply to named offenses but also to
felony offenses generally, or at least to fel­
onies of a particular grade or grades.

Among states that do not track and report nonjudicial transfers, the
number unaccounted for depends on the scope of each state’s laws
State
Number of states
Alabama

Alaska

Arkansas
Colorado
Delaware
Dist. Of Columbia
Georgia
Illinois
Indiana
Iowa
Louisiana
Maryland
Massachusetts
Minnesota
Mississippi
Montana
Nebraska
Nevada
New Mexico
New York
Oklahoma
Pennsylvania
South Carolina
South Dakota
Utah
Vermont
Virginia
Wisconsin
Wyoming

Nonjudicial transfer
only for extremely
rare offenses

Nonjudicial
transfer for
listed offenses

5

16

Nonjudicial transfer Prosecutorial
for all felonies or discretion limited
range of felonies
solely by age

n
n
n
n
n
n
n

n
n

n
n
n

n
n

n
n
n

n

3

n

n

n
n

n

n
n

5

n
n
n
n

Note: Table information is as of the end of the 2009 legislative session.

National Report Series Bulletin

Jurisdictional age laws may “transfer” as many as
175,000 additional youth to criminal court
In13 states, youth
become criminally
responsible before their
18th birthdays
Although it is important to have an idea of
the number and characteristics of juve­
niles who are prosecuted as adults under
state transfer laws, it should be remem­
bered that most criminal prosecutions in­
volving youth younger than 18 occur in
states that limit the delinquency jurisdic­
tion of their juvenile courts so as to ex­
clude all 17-year-olds—or even all
16-year-olds—accused of crimes. States
have always been free to define the re­
spective jurisdictions of their juvenile and
criminal courts. Nothing compels them to
draw the line between “juvenile” and
“adult” at the 18th birthday; in fact, there
are 13 states that hold youth criminally
responsible beginning with the 16th or

Upper age of original juvenile
court jurisdiction, 2007
Age

State

15

Connecticut,* New York, North
Carolina

16

Georgia, Illinois,** Louisiana,
Massachusetts, Michigan, Missouri,
New Hampshire, South Carolina,
Texas, Wisconsin

17

Alabama, Alaska, Arizona,
Arkansas, California, Colorado,
Delaware, District of Columbia,
Florida, Hawaii, Idaho, Indiana,
Iowa, Kansas, Kentucky, Maine,
Maryland, Minnesota, Mississippi,
Montana, Nebraska, Nevada,
New Jersey, New Mexico, North
Dakota, Ohio, Oklahoma, Oregon,
Pennsylvania, Rhode Island, South
Dakota, Tennessee, Utah, Vermont,
Virginia, Washington, West Virginia,
Wyoming

* Upper age of original jurisdiction is being
raised from 15 to 17: the transition will be
complete by 2012.
** Upper age rose from 16 to 17 for those
accused of misdemeanors only, effective 2010.

September 2011

17th birthday. The number of youth
younger than 18 prosecuted as adults in
these states—not as exceptions, but as a
matter of routine—can only be estimated.
But it almost certainly dwarfs the number
that reach criminal courts as a result of
transfer laws in the nation as a whole.

A total of 2.2 million
youth younger than 18
are subject to routine
criminal processing
The authors do not know the number of
youth prosecuted as adults in states that
set the age of adult responsibility for
crime at 16 or 17 for many of the same
reasons that they do not know the num­
ber of youth prosecuted as adults under
transfer laws. However, rough estimates
are possible, based on population data
and what is known about the offending
behavior of 16- and 17-year-old youth.
In 2007, there were a total of 2.2 million
16- and 17-year-olds who were consid­
ered criminally responsible “adults” under
the jurisdictional age laws of the states in
which they resided. If one applies agespecific national delinquency case rates
(the number of delinquency referrals per
1,000 juveniles) to this population group
—and assume that they would have been
referred to criminal court at the same
rates that 16- and 17-year-olds are re­
ferred to juvenile courts in other states
—then as many as 247,000 offenders
younger than age 18 would have been re­
ferred to the criminal courts in 2007.
To determine the number of youth who
are actually criminally prosecuted in the
13 states, delinquency case rates may be
less pertinent than delinquency petition
rates—that is, the age-specific rates at
which youth are formally processed in
(rather than merely referred to) juvenile

court. On the basis of age-specific delin­
quency petition rates, one would expect
about 145,000 youth younger than 18 to
have been criminally prosecuted in the 13
states in 2007.
It is possible to refine this rough estimate
somewhat further. To account for the fact
that different groups are formally pro­
cessed in court at different rates, one can
control not only for age but also for sex
and race. If one applies age-, sex-, and
race-specific petition rates to the popula­
tion involved, an estimated 159,000 youth
who were younger than 18 were prosecut­
ed in criminal courts in the 13 states in
2007.
One can also take population density into
account. The estimation procedure that
NCJJ used to produce national data on ju­
venile court processing characteristics
uses the county as the unit of aggrega­
tion. As part of the multiple-imputation
and weighting process, all U.S. counties
are placed into one of four strata on the
basis of the size of their youth population,
and specific rates are developed for age/
race groups within each of the strata. If
we apply similar age-, race-, and strataspecific petition rates to this population,
we arrive at an estimate of 175,000 cases
involving 16- or 17-year-olds tried in
criminal court in the 13 states in 2007.
It should be noted again, however, that all
of these estimates are based on an as­
sumption that is at least questionable: that
juvenile and criminal courts would re­
spond in the same way to similar offend­
ing behavior. In fact, it is possible that
some conduct that would be considered
serious enough to merit referral to and
formal processing in juvenile court—such
as vandalism, trespassing, minor thefts,
and low-level public order offenses—
would not receive similar handling in
criminal court.

21

Juveniles in most states can be jailed while awaiting
trial in criminal court
Contact with adult
inmates is sometimes
but not always restricted
Depending on state law, local practice,
and such factors as the age of the ac­
cused, juveniles who are confined while
awaiting criminal trial may be held in juve­
nile detention facilities or adult jails.
A total of 48 states authorize jailing of ju­
veniles who are awaiting trial in criminal
court. In 14 of these states, use of adult
jails rather than juvenile detention facili­
ties for pretrial holding of transferred ju­
veniles is mandated, at least in some
circumstances; in the rest, the use of jails
is allowed but not required. Sometimes a
special court order or finding is required
for jail holding, and sometimes a minimum
age. For example, California requires a
finding that a youth’s pretrial detention in
an ordinary juvenile facility would endan­
ger the public or other juvenile detainees.
In Illinois, a juvenile must be at least 15 to
be held in jail, and a court must specifical­
ly order it. New Jersey requires a special
hearing, comparable to a transfer hearing,
before jail holding may be ordered. On the
other hand, some states, such as Idaho
and Tennessee, generally mandate use of
jails for pretrial confinement when juve­
niles are processed as adults but empow­
er courts to order the use of juvenile
detention centers in individual cases.
Laws in 18 of the states that allow jail
holding of juveniles specify that they
must be kept from contact with adult jail
inmates. Transferred youth in most states
may also be held in juvenile detention fa­
cilities, either routinely or pursuant to
court orders in individual cases.

Most states allow but do not require transferred youth to be held
pretrial in adult jails rather than juvenile detention centers

State
Number of states
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
District of Columbia
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming

Jailing of
Minimum age,
transferred youth special condition,
allowed pending
or court order
criminal trial
required
48

n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n
n

15

Use of jails
mandated
under some
circumstances

Youth–adult
separation
required

14

18

n
n
n
n
n

n
n
n
n
n

n
n
n
n
n

n
n
n
n
n
n
n

n
n
n
n
n

n
n

n
n
n
n
n
n
n

n

n
n

n

n
n

n
n

n
n

n

Note: New Mexico and Washington provisions apply only to previously convicted juveniles. Table information is as
of the end of the 2009 legislative session.

22

National Report Series Bulletin

A 2009 survey found
that more than 7,000
youth who were younger
than 18 were in jails
Federal data collections shed some light
on state approaches to pretrial holding
of transferred youth. The BJS-sponsored
Annual Survey of Jails (ASJ) provides a
one-day snapshot of the population con­
fined in jails nationwide. According to the
most recent ASJ, at midyear 2009 the na­
tion’s jails held a total of 7,220 inmates
who were younger than 18, including
5,847 who had been tried or were await­
ing trial as adults—less than 1% of the
total jail population.
However, this cannot be considered an
exact count of “transferred juveniles” in
jail because many of these inmates who
were younger than 18 were held in states

where ordinary criminal court jurisdiction
begins at age 16 or 17. Moreover, the
total does not take account of inmates
who were accused of offenses committed
while younger than 18 but were already
older than 18 by the time of the survey.
The Census of Juveniles in Residential
Placement (CJRP) provides a one-day
population count of the nation’s juvenile
facilities, including those normally used
for detaining youth pending trial in the
juvenile system. The most recent CJRP
found that, as of the 2007 census date,
a total of 1,101 individuals being held in
juvenile residential facilities nationwide
were awaiting proceedings in criminal
court, in addition to 303 who were await­
ing transfer hearings. Taken together,
these youth made up about 1.6% of the
residents of the nation’s juvenile facilities.

Between 2005 and 2009, an average of 5,700 juveniles were held as adults
in local jails—less than 1% of all inmates
Number of juveniles
7,000

Juveniles held as adult inmates in local jails

6,000
5,000
4,000
3,000
2,000
1,000
0

2005

2006

2007

2008

2009

Note: Authors’ adaptation of Minton’s Jail Inmates at Midyear 2009—Statistical Tables, Prison and Jail Inmates at
Midyear.

September 2011

Federal law prohibiting
holding of juveniles with
adults does not apply to
transferred juveniles
The Juvenile Justice and Delinquency
Prevention (JJDP) Act of 1974, as
amended, generally requires, as a
condition of federal funding for state
juvenile justice systems, that juvenile
delinquents and status offenders not
be confined in jails or other facilities
in which they have contact with in­
carcerated adults who have been
convicted or are awaiting trial on
criminal charges. However, regula­
tions interpreting the JJDP Act pro­
vide that juveniles who are being
tried as adults for felonies or have
been criminally convicted of felonies
may be held in adult facilities without
violating this “sight and sound sepa­
ration” mandate. Juveniles who have
been transferred to the jurisdiction of
a criminal court may also be con­
fined with other juveniles in juvenile
facilities without running afoul of the
JJDP Act mandate. However, once
these youth reach the state’s maxi­
mum age of extended juvenile juris­
diction, they must be separated from
the juvenile population.
The proposed Juvenile Justice and
Delinquency Prevention Reauthoriza­
tion Act of 2009, currently pending
before Congress, would eliminate the
special exception that permits jail
holding of transferred juveniles while
they await proceedings in criminal
court. Effective 3 years from the en­
actment of the Reauthorization Act,
the sight and sound separation man­
date would apply to such youth. They
could not be jailed with adults unless
a court of competent jurisdiction,
after considering a number of indi­
vidualized factors, had determined
that the interests of justice
required it.

23

Convicted juveniles do not always receive harsher
sanctions in the adult system
Sentencing and
correctional handling of
transferred youth vary
from state to state
There are few national sources of informa­
tion regarding what happens to youth
once they are transferred to criminal
courts. Even the most basic question—
whether convicted youth are sanctioned
more severely in the adult system than
they would have been in the juvenile sys­
tem—is difficult to answer, as various
studies focusing on individual jurisdic­
tions have yielded inconsistent results.
On the one hand, most studies have con­
cluded that criminal processing of these
youth is more likely to result in incarcera­
tion and that periods of incarceration that
criminal courts impose tend to be longer.
However, a few have found no such differ­
ences in sentencing severity. In any case,
it is likely that juvenile-criminal sentencing
differences are largest in states that crimi­
nally prosecute only the most serious
juvenile offenders. In states with transfer
laws that apply to a broader range of less
serious offenses, one would expect the
adult system to regard transferred youth
more lightly—and perhaps more lightly
than the juvenile system would.
Special analyses of data from the State
Court Processing Statistics Program
(SCPS) and the National Judicial Report­
ing Program (NJRP) have shed some light
on the ways in which criminal sentencing
of transferred juvenile felons compares
with dispositions of nontransferred youth
on the one hand, and with sentencing of
adult criminals on the other. In the first
comparison, data on juvenile felony defen­
dants from the 1990, 1992, and 1994
SCPS sample were contrasted with data
on youth formally processed in the juve­
nile courts of the same large urban juris­
dictions. Overall, 68% of the transferred

24

NJRP data and 1998 SCPS data, compar­
ing sentences that transferred juvenile fel­
ons received with sentences that adult
felony defendants received, found no such
consistent pattern of age-based leniency.
Both studies found that transferred juve­
niles convicted of violent felonies were
about as likely as adults to be sentenced
to some form of incarceration. At least in
the NJRP sample, juveniles convicted of
property and weapons offenses were con­
siderably more likely to be incarcerated
than adult property and weapons offend­
ers. Moreover, even though the NJRP
analysis showed that transferred juveniles
were sentenced to shorter maximum pris­
on terms than were adults for sexual
assault, burglary, and drug offense con­
victions, they received longer prison
terms than adults did for murder and
weapons offense convictions.

youth received sentences involving incar­
ceration in jail or prison, whereas only
40% of the nontransferred youth received
dispositions involving placement in juve­
nile correctional facilities. Of those con­
victed in criminal court of violent offenses,
79% were sentenced to incarceration,
whereas only 44% of those adjudicated
delinquent for violent offenses received
juvenile dispositions involving placement.
Similar criminal-juvenile differences were
found in sanctions received by property
offenders (57% incarcerated in the crimi­
nal system versus 35% in the juvenile
system), drug offenders (50% versus
41%), and public order offenders (60%
versus 46%).
A separate issue is whether, by reason of
their age, juveniles in criminal court re­
ceive more lenient sentencing treatment
than adult defendants. Analyses of 1996

Among felony defendants convicted of property and weapons offenses,
transferred juveniles were far more likely than adults to be sentenced to
prison terms
Offense/
defendant
All offenses
Transferred juveniles
Adults
Violent offenses
Transferred juveniles
Adults
Property offenses
Transferred juveniles
Adults
Drug offenses
Transferred juveniles
Adults
Weapons offenses
Transferred juveniles
Adults
Other offenses
Transferred juveniles
Adults

Profile of felony
sentence imposed
Total Prison Jail Probation

100%
100

60%
37

19%
23

100
100

75
78

9
5

100
100

46
18

100
100

21%
40

Mean maximum sentence
length (in months)
Prison Jail Probation
91
59

6
6

44
38

15
17

118
101

8
7

55
46

27
28

27
54

39
46

6
6

43
38

31
34

36
28

33
38

30
47

6
6

29
39

100
100

55
39

20
17

25
44

48
42

6
5

26
31

100
100

37
22

43
37

20
41

48
41

6
6

33
36

Source: Authors’ adaptation of Levin, Langan, and Brown’s State Court Sentencing of Convicted Felons, 1996.

National Report Series Bulletin

Convicted youth may
sometimes serve part of
their sentences in
juvenile facilities

State prisons, the bulk
of them in the South,
held more than 2,700
juveniles in 2009

States take a variety of correctional ap­
proaches with criminally convicted youth
who receive sentences of incarceration,
including straight incarceration in adult fa­
cilities with no distinction between minor
and adult inmates, segregated incarcera­
tion in special facilities for underage of­
fenders, and graduated incarceration that
begins in juvenile facilities and is followed
by later transfer to adult ones. According
to juvenile correctional agencies respond­
ing to a 2008 survey that the Council of
Juvenile Correctional Administrators con­
ducted, in about two-thirds of states,
juveniles who have been convicted and
sentenced to incarceration by criminal
courts may serve some portion of their
sentences in juvenile correctional
facilities.

At mid-year 2009, the National Prisoner
Statistics Program, which collects oneday snapshot information on state prison
inmates, counted a total of 2,778 inmates
younger than age 18 in state prisons

Several states set a statutory minimum
age—typically 16—for commitment to an
adult correctional facility. In Delaware, for
example, a youth younger than 16 who
has been sentenced to a term of impris­
onment must be held initially by the
state’s Division of Youth Rehabilitation
Services and then transferred to the
state’s Department of Corrections upon
reaching his or her 16th birthday.
The 2007 Census of Juveniles in Residen­
tial Placement counted a total of 761 in­
mates in juvenile residential facilities who
had been convicted in criminal court and,
presumably, were either serving their
sentences or awaiting transfer to adult
facilities.

nationwide. About 46% of these inmates
were held in prisons in southern states.
Although many of these youth were un­
doubtedly convicted following prosecution
under state transfer laws, more than half
were held in states where ordinary crimi­
nal court jurisdiction begins at age 16 or
17 rather than 18.

Half of inmates younger than 18 held in state prisons come from states
with a younger age of criminal responsibility

More than 100 (10)
50 to 100 (7)
15 to 50 (11)
5 to 15 (7)
Less than 5 (15)

State
U.S. total

Inmates*
2,778

Upper age 15
Connecticut
New York
North Carolina

737
332
190
215

Upper age 16
Georgia
Illinois
Louisiana
Massachusetts
Michigan
Missouri
New Hampshire
South Carolina
Texas
Wisconsin

673
99
106
15
8
132
31
0
89
156
37

State
Upper age 17
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Delaware
Florida
Hawaii
Idaho
Indiana
Iowa
Kansas
Kentucky
Maine
Maryland
Minnesota
Mississippi

Inmates*
1,368
118
7
157
17
0
79
28
393
2
0
54
13
5
0
0
58
13
28

State
Montana
Nebraska
Nevada
New Jersey
New Mexico
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Dakota
Tennessee
Utah
Vermont
Virginia
Washington
West Virginia
Wyoming

Inmates*
1
21
118
21
3
0
86
19
13
61
1
1
22
6
4
16
2
0
1

* Reported number of inmates younger than age 18 held in custody in state prisons, 2009.
Source: Authors’ adaptation of West’s Prison Inmates at Midyear 2009—Statistical Tables, Prison and Jail
Inmates at Midyear.

September 2011

25

Transfer laws generally have not been shown to
deter crime
Some research suggests
that transfer may
increase subsequent
offending
Given the many practical ways in which
state transfer laws vary in their scope and
operation, blanket statements about their
effects should be read with caution. How­
ever, insofar as these laws are intended to
deter youth crime generally, or to deter or
reduce further criminal behavior on the
part of youth subjected to transfer, re­
search over several decades has generally
failed to establish their effectiveness.
Research on the general deterrence ef­
fects of transfer laws—their tendency to
discourage the commission of offenses
subject to transfer and criminal prosecu­
tion—has not produced entirely consis­
tent results. Most studies have not found
reductions in juvenile crime rates that can
be linked to transfer laws. One multistate
analysis by Levitt concluded that there
could be a moderate general deterrent ef­
fect, and studies based on interviews with
juveniles, conducted by Redding and Full­
er and by Glassner and others, suggest
the possibility that transfer laws could
deter crime if sufficiently publicized. How­
ever, the weight of the evidence suggests
that state transfer laws have little or no
tendency to deter would-be juvenile crimi­
nals. Possible explanations include juve­
niles’ general ignorance of transfer laws,
tendency to discount or ignore risks in
decisionmaking, and lack of impulse
control.
A separate body of research, comparing
postprocessing outcomes for criminally

26

prosecuted youth with those of youth
handled in the juvenile system, has
uncovered what appear to be counterdeterrent effects of transfer laws. Six
large-scale studies summarized by Red­
ding—employing a range of different
methodologies and measures of offend­
ing, and focusing on a variety of jurisdic­
tions, populations, and types of transfer
laws—have all found greater overall recid­
ivism rates among juveniles who were
prosecuted as adults than among matched
youth who were retained in the juvenile
system. Criminally prosecuted youth were
also generally found to have recidivated
sooner and more frequently. Poor out­
comes like these could be attributable to a
variety of causes, including the direct and
indirect effects of criminal conviction on
the life chances of transferred youth, the
lack of access to rehabilitative resources
in the adult corrections system, and the
hazards of association with older criminal
“mentors.”
However, some critics have raised the
possibility that the observed greater reof­
fending on the part of transferred youth is
simply a consequence of group differenc­
es between transferred and nontransferred
youth—not an effect of transfer but a
“selection bias” that could not be correct­
ed for, given the limited information and
statistical controls available to research­
ers. (See, for example, Meyers’ study
“The Recidivism of Violent Youths in Ju­
venile and Adult Court: A Consideration of
Selection Bias.”)

in finding these effects for all offense
types—leaving open the possibility that
criminal prosecution may work for some
kinds of young offenders and not work for
others. In fact, a 2010 comparison, by
Schubert and others, of rearrest outcomes
for transferred and nontransferred youth
found that, whereas transfer appeared to
have no effect on rearrest rates for the
sample as a whole, transferred person of­
fenders had lower rearrest rates than their
nontransferred counterparts.
Although transfer laws in general have not
been shown to work (that is, improve
public safety by reducing serious crime
through specific or general deterrence), it
is not clear whether this conclusion ap­
plies to all transfer laws equally because
the key studies have been conducted in
only a handful of states. Again, it should
be remembered that transfer laws vary
considerably, and their effects are unlikely
to be uniform. It may be that some trans­
fer provisions—targeting certain offenses
or resulting in certain sanctions—are more
effective in deterring crime than others.
The data gathered under BJS’s new Sur­
vey of Juveniles Charged in Adult Criminal
Courts should significantly contribute to
our understanding of the national impact
of state transfer mechanisms but is un­
likely to support state-level analyses.
Better state-level data are necessary to
support the state-specific research that is
clearly needed to shed light on the impact
and workings of each state’s transfer
laws.

The studies finding that transfer had
counterdeterrent effects did not all agree

National Report Series Bulletin

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27

U.S. Department of Justice
Office of Justice Programs
Office of Juvenile Justice and Delinquency Prevention

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National Report Series Bulletin

NCJ 232434

Acknowledgments
This Bulletin was written by Patrick
Griffin, Senior Research Associate, Sean
Addie, Policy Analyst, Benjamin Adams,
Research Associate, and Kathy
Firestine, Research Assistant, at the
National Center for Juvenile Justice,
with funds provided by OJJDP to sup­
port the National Juvenile Justice Data
Analysis Project.

This Bulletin was prepared under cooperative
agreement number 2008–JF–FX–K071 from the
Office of Juvenile Justice and Delinquency
Prevention (OJJDP), U.S. Department of Justice.
Points of view or opinions expressed in this
document are those of the authors and do not
necessarily represent the official position or
policies of OJJDP or the U.S. Department of
Justice.

The Office of Juvenile Justice and Delinquency
Prevention is a component of the Office of
Justice Programs, which also includes the
Bureau of Justice Assistance; the Bureau of
Justice Statistics; the National Institute of
Justice; the Office for Victims of Crime; and
the Office of Sex Offender Sentencing,
Monitoring, Apprehending, Registering, and
Tracking.

 

 

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