Clinton: Try More Youths as Adults

Ken Cummins
November 1, 1995

Justice Department officials are advancing a national plan endorsing the criminal prosecution of juveniles in adult court – amid charges the move is based on “1996 presidential politics rather than good policy.”

Juvenile justice and child advocacy groups warn that the Clinton Administration’s endorsement of the rapidly growing trend to try juveniles as adults would encourage “wholesale waivers” of youth into a “destructive” adult correctional system that teaches them how to become career criminals upon release.

Advocates also worry that such a national policy would embolden prosecutors and criminologists to campaign for an end to the nation’s less-punitive juvenile justice system on grounds it is failing to stem increasingly lethal criminal behavior among youth.

“This is a battle to look tough,” says Dan Macallair, associate director of the San Francisco-based Center on Juvenile Criminal Justice. “I think the administration is trying to blunt or lessen the onslaught of the conservative, rightwing juggernaut.

“What we ought to be talking about is how to make the juvenile justice system better. My feeling is, people will hear the rehabilitation message, but it’s not offered.”

Edelman Flip-Flop

But defenders of the yet-to-be-released federal waiver policy proposal paint it as an “intelligent, balanced” and “realistic” approach that acknowledges existing state laws and practices.

“We have to differentiate between juveniles who can be helped by community service and treatment programs, and those who need to be in the adult system,” says respected juvenile justice expert Peter Edelman, HHS’ acting assistant secretary for planning and evaluation. “It’s a small number [who belong in the adult system], but right now, the systems don’t differentiate.

“I have changed my own position,” concedes Edelman, a key player in the Clinton administration’s overall juvenile justice policy. “I personally support waivers in certain circumstances, whereas 20 years ago, I didn’t.”

That shift in thinking has disappointed many who look to Edelman as a bulwark against a get-tough approach to juvenile crime and advocate for more emphasis on prevention. Edelman serves on the Attorney General’s Coordinating Council on Juvenile Justice and Delinquency Prevention. The Coordinating Council is expected to take final action on the controversial waiver policy at its scheduled Nov. 28 meeting in Washington.

Until the outcry, which erupted after a June draft of the proposal leaked to advocacy groups, the Clinton-Reno Justice Department had gotten good marks from these groups for putting more emphasis on prevention. Now, advocates say they detect a departure from previous policies that were based on sound data and scientific research.

Even Judges Object

“For them to be saying we ought to be prosecuting more juveniles as adults violates the very spirit of the ‘Comprehensive Strategy,’” says National Association of Child Advocate’s Miriam Rollin. She was referring to the guide for combating violent and chronic juvenile crime released last spring by the Justice Department’s the Office of Juvenile Justice and Delinquency Prevention (OJJDP).

“This was done based on sound research,” Rollin said of the guide, while the waiver proposal “is based on politics.”

Indeed, opponents of the administration’s waiver plan now include even the National Council of Juvenile and Family Court Judges which usually accommodates the political powers of the day. These critics point to an increasing number of studies showing that the ever-expanding waiver laws now prevalent in all 50 states have not reduced crime.

The 1994 annual report by the Coalition for Juvenile Justice and the National Council on Crime and Delinquency’s June 1994 study, “Images and Reality,” found that juveniles often receive lighter sentences or probation in the overcrowded adult system.

Juveniles thrown into the adult system also are not given counseling, vocational training and other treatment services that could get them off the criminal path, these and other studies reported. And youth often are sexually, physically and mentally abused in adult prisons.

“I think we have people in the legislature now who know very little about social problems and very little about solving problems,” says Ann Arnesen, director of the Wisconsin Council on Children and Families in Madison. “They look for simple solutions, and all the arguments just fall on deaf ears.”

Wisconsin, once a leader in progressive juvenile policies, now is a leading state in trying juveniles as adults for property crimes.

Three-Way Entry

Juveniles get transformed or waived into the adult system in three ways. The traditional entry is through judicial waiver. A waiver hearing is held before a juvenile court judge at which testimony is presented about the seriousness of the offense. Family and criminal background, and whether the youth would be amenable to treatment, also are considered by the judge in making the waiver decision.

Juvenile Justice advocates support this avenue as the most sensible approach.

The second is through automatic legislative waiver. Over the past decade, state legislatures have rushed to pass laws expanding the number of crimes under which a juvenile must be tried in adult criminal court rather than kept in the juvenile system. Many states also have lowered the age for automatic legislative waiver into adult court to 16, and, for more serious crimes like murder, even lower.

The third waiver method allows prosecutors to decide in which court the juvenile will be tried. Waiver by prosecutorial discretion also has been expanding rapidly in recent years.

No statistics are available on the number of juveniles waived into adult court annually, but reliable estimates place the figure at well over 100,000. OJJDP in August released “Juvenile Offenders and Victims: A National Report” which found that 11,700 judicial waiver hearings were held in 1992. That was a jump from 7,000 just four years earlier.

But the report’s co-author, Howard Snyder of the Pittsburg-based National Center for Juvenile Justice, says judicial waivers account for less than 10 percent of the total number of youths transferred to adult criminal courts annually. Legislative and prosecutional waivers are much more common, says Snyder, and their use is increasing at a much faster pace.

The proposed federal policy on waivers, part of OJJDP’s “National Juvenile Justice Action Plan,” has stirred considerable debate within the Attorney General’s Coordinating Council over the past six months. That debate, however, has taken place entirely out of public view in the council’s private working sessions.

Bilchik's Office of Juvenile Waivers on Defensive

Michael Mahoney, vice chair of OJJDP's Illinois state advisory group, has been the leader of "a vocal minority" on the Coordinating Council against the waiver proposal being shepherded by OJJDP Administrator Shay Bilchik. A former juvenile prosecutor under Janet Reno in Dade County, Fla.

“The last thing I need, when I’m out here fighting battles against waivers, is a federal report that says waivers is the way to go,” says Mahoney, national president of John Howard Association, a non-profit juvenile justice and corrections reform group.

Mahoney has been fighting to change the policy's original wording that calls on states to "vigorously prosecute" juveniles as adults, encourages "greater prosecutorial discretion," authorizes incarceration of serious juvenile offenders in adult jails, and advocates removal of federal barriers to transfers.

"No one has documented to me that barriers exist." says Mahoney, "and even if they did, I'd say, Amen!. It ought to be hard to transfer kids."

Mahoney contends the proposed policy is "relatively simple to fix." He is pushing for inclusion of language that points out the "negative effects" of juvenile transfers and calls for a study of the impact on juveniles waived into the adult system.

He said he was informed by Bilchik in mid-October that changes to the policy would be made prior to the Nov. 28 meeting to reflect Manoney's concerns. Bilchik, however, declined to be interviewed for this article because, according to OJJDP spokesman Adam Specter, the matter was "sensitive."

Bilchik appeared caught off guard by the outpouring of opposition to the waiver policy following the Coordinating Council's tentative approval of the action plan at its August meeting. The OJJDP administrator is seen as the moving force behind the policy because of his advocacy of juvenile waivers while a prosecutor in Florida working for former state's attorney Janet Reno.

Florida No Model

Florida has been at the forefront of the juvenile waiver trend, transferring far more youths to the adult system than any other state. But critics say Florida's experience provides the best argument against the practice.

"It doesn't work the way Shay and others say it does," says Charles Frazier, a sociology professor at the University of Florida, who has conducted several studies of the state's use of juvenile waivers.

"The best predictor of who gets moved to the adult system is actually age," he says. "Florida moves 17-year-olds who are minor offenders."

That's because the juvenile justice system loses its hold on these offenders after they turn 18, Frazier explains. Florida prosecutors file up to 7,000 criminal cases involving juveniles annually in adult courts, according to Frazier. Along with the murders and violent assaults, many of these cases, his research reveals, involve 16- and 17-year-old juveniles charged with felony property crimes of burglary and robbery, and misdemeanor thefts, loitering and even prowling. Most of those charged with misdemeanors have prior records, Frazier says, but would not have been considered unusually difficult cases in the juvenile justice system.

Coordinating Council Member John Cahill, however, maintains that the juvenile justice system is ill-equipped to handle violent and murderous youth who are becoming more common, partly because of the easy availability of guns.

"There's just no capability in the juvenile justice system to keep these kids who hurt people for over two years, and people are saying, ‘hey, that doesn't work for me," says Cahill, probation director for Las Vegas-Clark County, Nev.

Cahill supports the proposed waiver policy as "a bold step. I have questioned myself about it, whether this is just a way to get tough to appeal to conservatives," he allows. "But I believe if we don't slice that group out, people are going to be willing to do away with the whole juvenile justice system to get at them.

"And we in the juvenile justice system can't show that there's any one treatment that works for sure with these kids,” he adds.

'Blended’ Approach Backed

But rather than sanctioning practices already prevalent at the state level, juvenile justice advocates say OJJDP should adopt a policy that promotes the "blended" programs being tried in New Mexico, Montana, Minnesota and elsewhere.

For example, Minnesota now affords youth the right to jury trials in adult court, and sentencing in juvenile court. These reforms also allow the juvenile court to keep certain offenders up to the age of 21 before transferring them to adult prisons to complete their sentences, if necessary. University of Minnesota law professor Barry Feld said the reforms strengthen and expand the state's juvenile justice system by giving juvenile courts "a longer handle and a stronger leash" over teenage offenders.

In "blended" states, serious juvenile offenders may be charged in adult criminal courts, but they have the right to petition to be tried and/or sentenced under the juvenile system. That petition results in a hearing similar to the hearings now held for juvenile judicial waivers.

These programs seek to blend the due process protections available in adult courts with the treatment programs available under the juvenile system. Juvenile justice advocates say this at least is an improvement over the questionable waiver practices OJJUP is seeking to sanction with its new policy.

Their fears that OJJDP's policy would usher in a new rush of waiver laws was born out, they say, when U.S. Sen. John Ashcroft (R-Mo.) introduced his juvenile crime bill in September. That legislation would tie federal crime-fighting money for states to increased prosecution of violent juvenile offenders as adults.

Frank Orlando, director of the Center for the Study of Youth Policy at Nova University Law School in Fort Lauderdale, Fla. says “The idea that OJJDP is promoting this shows how far behind it is in understanding what works and what doesn't work."



Juvenile Offenders and Victims: A National Report by Howard N. Snyder and Melissa Sickmund, National Center for Juvenile Justice, August 1995; Pub # NCJ 153569, Juvenile Justice Clearinghouse, P.O. Box 6000, Rockville, MD 20849-6000. Rockville, MD 20849-6000, internet address: 1-800-638-8736.

No Easy Answers: Juvenile Justice in a Climate of Fear, 1994 Annual Report. $2. 69 pages. Coalition for Juvenile Justice. 1211 Connecticut Avenue, NW, Suite 414, Washington, DC 20036, 202-467-0864, Fax 202-887-0738.

Juveniles Processed in Criminal Court and Case Dispositions by the U.S. General Accounting Office is a study of juvenile waivers to adult court. Includes conviction rates, conditions or confinement and an index of state laws. Available free from GAO, P.O. Box 6015, Gaithersburg, MD 20884-6015. (202) 512-6000.

  • Center for the Study of Youth Policy

    NOVA University Law School

    3305 College Avenue

    Shepard Broad Law Center

    Fort Lauderdale. FL 33314-7721

    Phone: (305) 452-6185

    Contact: Frank Oriando, Director
  • Center on Juvenile and Criminal Justice

    1622 Fulsom Street

    San Francisco, CA 94103

    Phone: (415) 621-5661: ext.62

    Contact: Dan Macallatr, Associate Director
  • Family and Youth Services Probation Division

    3464 East Bonanza

    Las Vegas, NV89101

    Phone:(702) 455-5200

    Contact: John Cahill, Division Supervisor
  • John Howard Association

    67 East Madison Street

    Suite 1416

    Chicago, IL 60603

    Phone: (312) 263-1901

    Contact: Mike Mahoney, President
  • National Association of Child Advocates

    1625 K Street, NW

    Suite 510

    Washington, DC 20006

    Contact: Miriam Rollin, Vice-President of Policy and Programs
  • National Center for Juvenile Justice

    710 Fifth Avenue, 3rd Floor

    Pittsburgh, PA 15219

    Phone: (412) 227-6950

    Contact: Howard Snyder
  • National Council of Juvenile and Family Court Judges

    99 Canal Center Plaza

    Suite 510

    Alexandria, VA 22314

    Phone: (703) 549-9222
  • National Council on Crime and Delinquency

    1325 G Street, NW

    Suite 770

    Washington, D.C. 20005

    Phone:(202) 638-0556

    Contact: Michael Jones
  • Office of Juvenile Justice and Delinquency Prevention

    633 Indiana Avenue, NW

    Washington, D.C. 20531

    Phone: (202) 307-0703

    Contact: Shay Bilchik, Administrator
  • University of Florida

    College of Liberal Arts and Sciences

    2014 Turlington Hall

    Gainesville, FL 32611

    Phone: (904) 392-2264

    Contact: Charles Frazler, Associate Dean & Sociology Professor
  • University of Minnesota

    340 Law School

    229 19th Avenue South

    Minneapolis, MN 55455

    Phone: (612) 625-9389

    Contact: Barry Fold, Law Professor
  • Wisconsin Council on Children and Family

    16 North Carroll Street, Room #420

    Madison, Wisconsin 53703

    Phone: (608) 284-0580

    Contact: Anne Arensen, Director

Cummings, Ken. "Clinton: Try More Youths as Adults." Youth Today, November/December 1995, p. 28-29.

©2000 Youth Today. Reprinted with permission from Youth Today. All rights reserved.