Does Trying Juveniles as Adults Work? An Analysis of the Evidence

By: Brian E. Oliver, PhD Student

University of Missouri St. Louis

Department of Criminology & Criminal Justice

One University Blvd.

324 Lucas Hall

St. Louis, MO 63121

(314) 482-8034

E-Mail: brianeoliver@aol.com

June, 2006

Abstract: Over the past 30 years, there have been changes in many state laws which have led to a dramatic increase in the number of juveniles tried as adults and housed in adult jails and prisons. Research conducted in this area, however, indicates that this get tough approach has been counterproductive. This article discusses the legal consequences of adjudication in adult criminal court and offers a review of the research findings on the deterrent effect of transfer laws, recidivism rates in juvenile versus criminal courts, issues inherent in housing juveniles in adult facilities and issues related to the competency of juvenile defendants. The implications of these findings are discussed and policy recommendations are given.

Keywords: Juvenile Offenders; Transfer; Incarceration

This report is a joint publication of Justice for Juveniles and the Juvenile Justice Foundation.

Introduction

In the 1990s, in response to public concern about juvenile crime, over 90 percent of state legislators along with the federal government passed more punitive laws regarding juvenile offenders. This increased public concern and the subsequent laws that followed were brought about as the result of a dramatic increase in violent crimes committed by juveniles in the 1980s. The most notable of these juvenile crime increases centered on the juvenile arrest rate for murder which increased by 110 percent between 1987 and 1993 (Snyder & Sickmund, 2006).

These get tough laws have made it easier for more and younger juvenile offenders to be prosecuted in criminal court. In some states, certain juvenile offenders are automatically tried as adults. In other states, prosecutors have discretion to file certain cases directly to criminal court. In many states, certain adjudicated juvenile offenders face mandatory minimum sentences (Snyder & Sickmund, 2006).

These increased transfer options were developed by politicians with get tough agendas who viewed juvenile court judges as being “too soft” on crime (Bishop & Frazier, 2000). The underlying assumption in this nationwide policy shift was that getting tough on juvenile offenders and incarcerating them in adult facilities for longer periods of time was the answer to the problem of the predatory youthful offender (Redding & Fuller, 2003). As a result of these changes in laws, the number of admissions of juvenile offenders to adult prisons increased from 3,400 in 1985 to approximately 7,400 in 1997 (Strom, 2000). Recent estimates indicated that there were approximately 9,100 youth housed in adult jails and 5,400 housed in adult prisons (Austin, Johnson & Gregoriou, 2000).

While this get tough trend has intuitive appeal, most of the laws that were passed in the last 30 years were not based on empirical research. As a result, the laws have not had the effects that were desired. This article reviews the research that has been conducted on the trend of trying juveniles as adults and incarcerating them in adult prisons. The findings indicate that there are many problems in trying juveniles as adults which policymakers need to address.

Do Transfer Laws Deter Juvenile Crime?

One assumption made by legislators in passing harsher laws, making it easier to try juveniles as adults, has been that juveniles would be less likely to become involved in criminal behavior if there were tough laws on the books that would send a message to would be offenders that crime would not be tolerated. An early study by Glassner, Ksander, Berg & Johnson (1983) provided support to this hypothesis. In the study, the authors interviewed youth about the criminal behavior they had engaged in as adolescents. What they found was that many of the youth interviewed made a conscious decision to stop engaging in criminal behavior once they turned 16, specifically because the laws on the books treated criminal offenders as adults starting at the age of 16.

A more recent study by Levitt (1998) provided additional support for the deterrence hypothesis. In the study, the juvenile crime rates between 1978 and 1993 were examined in relation to the punitiveness of the states’ juvenile court system in comparison to their criminal court system. What the study found was that states with harsher punishments for juveniles were more likely to experience lower rates of juvenile crime. This study provided evidence that harsher juvenile laws may have a deterrent effect on juvenile crime.

Not all research has provided support for the theory of deterrence, however. In New York, the Juvenile Offender (JO) Law of 1978 was passed in response to concerns about violent juvenile crime. It provided that all juveniles who were between the ages of 13 and 15 and were charged with murder and all juveniles who were either 14 or 15 and were charged with certain degrees of assault, arson, burglary, kidnapping and rape would automatically be tried as adults. To see if this law had a deterrent effect on crime, Singer & McDowell (1988) analyzed arrest data using an interrupted time series model for the years between 1974 and 1984. They found that after the law was implemented, the New York arrest rates for 13- to 15-year-old for homicide and assault increased. Additionally, while the New York arrest rates for 13- to 15-year-olds for rape and arson did decrease following the implementation of the law, similar declines in the arrest rates for 16- to 19-year-olds from New York and for 13- to 15-year-olds from Philadelphia were seen, indicating that the decrease in these crime rates was not the result of the new law. These findings led the authors to conclude that the implementation of the Juvenile Offender Law in New York did not deter juvenile crime.

An analysis of Idaho’s 1981 automatic transfer law was conducted by Jensen & Metsger (1994) to see if harsher transfer laws deterred crime. The rates of juvenile arrest for those 14 and over in Idaho for murder or attempted murder, robbery, forcible rape, mayhem and assault or battery were examined for five-year time periods between 1976 and 1980 and between 1982 and 1986. Similar arrest rates for Montana and Wyoming, neighboring states which had demographics similar to Idaho but which had not passed an automatic transfer law, were also compared for the same time periods. The results of this study did not provide support for the theory of deterrence. After the automatic transfer laws went into effect in Idaho, the mean juvenile arrest rate for violent crimes increased by 18 percent. In contrast, the juvenile arrest rate for violent crimes for Wyoming decreased 14 percent during this time period and the juvenile arrest rate for violent crimes for Montana during this period decreased by 45 percent.

In contrast to the findings by Glassner et al. (1983), more recent research by Redding & Fuller (2004) provided evidence that one reason harsher juvenile transfer laws may not deter crime is because many of the juveniles affected by the laws are unaware of their existence. They interviewed 37 juveniles who had committed armed robbery in Georgia and who either were awaiting trial or who had been convicted. Less than one third (30.3 percent) of those interviewed stated they were aware before they committed the crime that juveniles who committed armed robbery in Georgia could be tried as adults. Additionally, none thought that they would end up being tried as an adult for their current offense. These findings can be seen as somewhat significant in light of efforts the state of Georgia had undertaken to try to publicize the consequences of the new juvenile transfer law.

The evidence, thus, is not clear whether or not harsher juvenile transfer laws deter juveniles from committing crimes. However, even if there is some evidence that properly implemented transfer laws may have some deterrent value, it’s important for policy makers to balance these benefits against the long-term negative consequences (which will be discussed in the following sections) of trying juveniles as adults and housing them in adult jails and adult correctional facilities.

Are Juveniles Tried as Adults Less Likely to Reoffend?

A second assumption made by legislators in passing laws making it easier to try juveniles as adults has been that tougher laws would enhance community protection because juveniles tried as adults would be less likely to reoffend than those tried as juveniles. Research has shown that the exact opposite is true, however. Several large scale studies have indicated that juveniles tried as adults tend to reoffend more often, more quickly and more seriously than those tried as juveniles.

Fagan (1996) looked at the recidivism rates for 800 15- and 16-year-olds convicted of first degree robbery, second degree robbery or first degree burglary. Half of the cases came from two counties in New York and half of the cases came from two counties in New Jersey. Because of the provisions on New York’s Juvenile Offender Law, all the cases in New York were automatically handled by the criminal court while the cases in New Jersey were dealt with by the juvenile court. While a comparison of recidivism rates did not show any difference between those convicted of burglary, there were significant differences found in the re-arrest rates of those convicted of robbery. A significantly higher proportion of robbers from New York were rearrested compared to the robbers from New Jersey. These differences held for both robbers sentenced to probation and robbers sentenced to incarceration. Additionally, robbers from New York who were sentenced to incarceration in criminal court tended to reoffend significantly sooner than the robbers from New Jersey who were sentenced to incarceration in juvenile court.

Podkopacz & Feld (1996) compared the recidivism rates for offenders from Hennepin County, Minnesota who had their cases referred for possible transfer to criminal court from 1986 to 1992. They found that the offenders tried as adults had a significantly higher recidivism rate (58 percent) than those retained by juvenile court (42 percent). Additionally, the study found that transferred offenders convicted of non-violent property offenses in criminal court received shorter sentences than offenders convicted of similar offenses in juvenile court.

Bishop, Frazier, Lanza-Kaduce & Winner (1996) examined the short term recidivism rates of 2,738 juvenile offenders who were transferred to criminal court in Florida in 1987 against a matched sample of delinquents who were retained in the juvenile system. They found that 30 percent of those tried as adults had been charged with an additional offense by the end of 1988 compared with only 19 percent of those retained by the juvenile justice system. They further found that the offenders tried as adults were more likely to reoffend sooner and more seriously than their non-transfer matches.

Winner, Lanza-Kaduce, Bishop & Frazier (1997) further examined the long term recidivism rates of these same youth by looking at the recidivism rates of the same groups of offenders through November 15, 1994. What they found was that there was one group of offenders retained by the juvenile justice system who had higher recidivism rates than their transfer counterparts. Specifically, property felons had lower recidivism rates if they had been transferred than if they had not. With this exception, however, the results showed that transferred offenders who reoffended tended to have more subsequent arrests and tended to be arrested more quickly than the offenders retained by the juvenile court. This study, like its 1996 predecessor, supported the finding that “transfer was more likely to aggravate recidivism than stem it” (pp. 558-559).

Meyers (2003) analyzed data pertaining to a cohort of 494 violent juveniles from Pennsylvania, of which 79 were waived to adult court and 415 were retained in juvenile court. He found that 38 percent of transferred offenders reoffended compared to 29 percent of those retained in juvenile court. Additionally, while 24 percent of the transferred offenders were rearrested for a violent felony offense following final disposition, only 16 percent of the youth retained in juvenile court were rearrested for a violent felony offense.

Most recently Lanza-Kaduce, Lane, Bishop & Frazier (2005) looked at the adult recidivism rates of 475 matched pairs of Florida juvenile offenders, one group who had the charges transferred to criminal court, the other group who were tried as juveniles. They found that 49.2 percent of transferred offenders had a felony rearrest or adult correctional commitment after turning 18 compared with only 35.4 percent of those in the juvenile match group.

The results of these seven studies clearly indicate that the get tough policies transferring more juvenile offenders to criminal court appear to have a criminogenic rather than deterrent effect.

One of the reasons why juveniles tried as adults may have higher recidivism rates than those tried as juveniles has to do with the adversarial and retributive nature of criminal court processing. Redding (2003) suggested that formal justice processing “may give juveniles a delinquent self-concept and weaken their sense of connection to the community, thus producing higher recidivism rates” (p. 136). Another possible reason given to explain higher recidivism rates is that juveniles tried as adults are more likely to view criminal court proceedings as unfair and unjust (Bishop and Frazier, 2000).

To learn how juvenile offenders viewed criminal versus juvenile court proceedings, Bishop, Frazier, Lanza-Kaduce and White (1998, as cited in Bishop and Frazier, 2000) talked to juvenile offenders from Florida and compared the responses of those tried as juveniles with the responses of those tried as adults. What they found was that those tried as juveniles generally had a positive view of the juvenile court. Overall, they were impressed with how the judges interacted with them during the proceedings and how the judges genuinely seemed to care about them as individuals. Additionally, the majority of those interviewed saw the juvenile court proceedings as just and few saw the juvenile court processes or outcomes as unfair

Transferred offenders viewed the criminal court in much different terms. Many didn’t believe that the judge in the case cared about them or their problems. Many stated that the court proceedings were formal and hurried and several reported difficulty understanding the legal terminology or court proceedings. Overall, even though the majority of those interviewed ended up pleading guilty, very few felt satisfied with the criminal court outcome. Additionally, many of the transferred offenders interviewed felt that the criminal court process sent a strong message that the offenders had little fundamental worth.

What Conditions Do Juveniles Face in Adult Correctional Facilities?

Along with the trend to try more and younger juveniles in criminal court, there has also been a trend to house juveniles in adult correctional facilities. Austin et al. (2000) reported that 44 states housed juveniles in adult jails and prisons. They further found the number of juveniles held in adult jails had increased 366% between 1983 and 1998 and that of the approximately 107,000 people under the age of 18 incarcerated in 1997, approximately 14,500 were housed in adult facilities.

Several studies have looked at the conditions that juveniles face when housed in adult correctional facilities. Forst, Fagan & Vivona (1989) interviewed 59 chronic juvenile offenders placed in state training schools and compared them to 81 similar youths sentenced to adult correctional facilities. What they found was that “the risks of violence to adolescents increase dramatically when these individuals are transferred to the adult correctional system” (p. 9). The juvenile inmates held in adult prisons were one and a half times as likely to be assaulted with a weapon and five times as likely to be sexually assaulted as the inmates held in juvenile facilities. The high sexual assault rate of juveniles held in adult correctional facilities in this study is not surprising given the findings that young inmates are more likely to be sexually assaulted in adult male correctional facilities (Hensley, Tewksbury & Castle, 2003). Earlier research by Flaherty (1980) also found that the suicide rate of juveniles held in adult jails was 7.7 times larger than the suicide rate of youth held in juvenile detention centers and 4.6 times larger than the suicide rate of youth in the general population.

A second issue surrounding incarcerating juveniles in adult correctional facilities has to do with a lack of programming for these juveniles. Gaarder & Belknap (2004) interviewed 22 girls adjudicated and sentenced as adults in a large Midwestern women’s prison and found that the prison which housed the girls had very little programming designed specifically for this population. Lane, Lanza-Kaduce, Frazier & Bishop (2002) interviewed 144 males between the ages of 17 and 20 incarcerated in the Florida juvenile and adult correctional systems for crimes they committed while under the age of 18. Of those housed in adult correctional facilities, most said that appropriate programming was not available for them. LIS, Inc. (1995) similarly found that few state Department of Corrections offered special programming for youthful offenders.

Related to the lack of programming is the lack of appropriate training and motivation of staff in adult correctional facilities who work with juvenile populations. Forst, et al. (1989) found that youth housed in juvenile facilities were much more likely to encounter staff who were able to help them achieve personal goals and who were able to help them develop skills that would help them when they returned to the community. LIS, Inc. (1995) found that few Department of Corrections facilities provided special staffing policies for selecting or training those who work with youthful offenders (the notable exception to this came from states which had youthful offender systems). Gaarder & Belknap (2004) found that most of the staff they interviewed expressed reluctance working with the juvenile population at the prison and that there was very little training on the topic of working with this population.

What these findings indicate is that adult jails and prisons can be very dangerous places for juvenile offenders. These facilities offer increased risks, little programming and few staff who seem to genuinely care about the youthful offenders they work with. Given some of the problems encountered by youth in adult correctional facilities, the finding that youth housed in adult facilities are more likely to reoffend is not really surprising.

Are Younger Adolescents Competent to Stand Trial in Criminal Court?

As laws have changed in the recent years, allowing younger juvenile defendants to be tried in criminal court, the significance of adolescent’s competency to stand trial has increased. The U.S. Supreme Court has ruled that due process requires defendants to be competent before they can stand trial (Dusky v. United States, 1960; Godinez v. Moran, 1993). What has not been examined in much detail until recently, however, is if developmental immaturity causes those under a certain age to be incompetent to stand trial.

Cowden & McKee (1995) examined the competency of 144 South Carolina juvenile defendants between the ages of nine and 16. They found that none of the nine- and ten-year-old defendants and less than thirty percent of the 11- and 12-year-old defendants were considered competent to stand trial. These findings led the authors to conclude that defendants 12 and under were at increased risk of being found incompetent.

Two years later, Cooper (1997) administered a competence to stand trial screening measure to 112 South Carolina juveniles between the ages of 11 and 16 who were experiencing their first institutional placement. The juveniles were then shown an educational videotape about the legal rights they had and were then readministered the competence to stand trial screening measure. There were two notable findings from this study. One was that those 13 and under scored significantly lower on the initial competency measure than those between 14 and 16. The second finding was that only two percent of the offenders obtained pretest scores on the competency measure above the cut-scores suggested for competence and “at posttest only 12 of the 110 children with pretest scores considered ‘incompetent’ obtained posttest score which were above the cut score suggested for competence” (p. 178). Based on these findings, Cooper concluded that “competence to stand trial cannot be presumed for juveniles, as it is for adults” (p. 178).

More recently, Grisso, Steinberg, Woolard, Cauffman, Scott, Graham, Lexcen, Reppucci & Schwartz (2003) had 927 juveniles aged 11 to 17 and 466 young adults aged 18 to 24 complete the MacArthur Competence Assessment Tool—Criminal Adjudication and the MacArthur Judgment Evaluation. They found that juveniles aged 15 and younger were “significantly more likely than older adolescents and young adults to be impaired in ways that compromise their ability to serve as competent defendants in a criminal proceeding” (p. 356). They further found “approximately one third of 11- to 13-year-olds, and approximately one fifth of 14- to 15-year-olds are as impaired in capacities relevant to adjudicative competence as are seriously mentally ill adults who would likely be considered incompetent to stand trial by clinicians who perform evaluations for courts” (p. 356). On the basis of these findings, one policy implication raised was the possibility that laws require that a juvenile be found competent to stand trial before he or she can be waived to criminal court.

Viljoen, Klaver & Roesch (2005) examined the legal judgments of 152 defendants between the ages of 11 and 17 who were detained in a pretrial detention facility in the state of Washington. The juveniles were asked questions regarding their interrogation by police and their decision about whether to ask for an attorney, confess, disclose information to an attorney and to accept a plea bargain if there was strong evidence against them. The study authors found that the subjects between 11 and 14 were less likely to request a lawyer and more likely to confess during interrogation than juveniles between the ages of 15 and 17. The study authors further found that none of the juveniles who had their parents present during the interrogation were advised by their parents that they should assert their right to remain silent. This led the study authors to conclude that having a parent present during interrogation may do little to protect juvenile suspects. One policy implication raised was “to provide preadolescent and early adolescent defendants with a mandatory lawyer during police questioning and subsequent legal proceedings” (p. 274).

Policy Implications

The research findings demonstrate that increasing the number of juveniles tried as adults has not had the desired impact on criminal offending. Instead, most of the research suggests that juveniles often end up posing more of a risk to society when they are released if they are tried as adults than if they are tried as juveniles. This is troubling given the findings that state prisoners under the age of 18 serve an average of only 37 months in prison and that nearly 75 percent of these offenders will be eligible for release before their 22nd birthday (Strom, 2000).

One policy implication these findings suggest is that there should be fewer juvenile cases transferred to criminal court. This is particularly true with first-time offenders who have committed crimes against person as these individuals appear to pose a low risk for recidivism (Redding, 2003). It seems fairly clear that a criminal court proceeding against a juvenile is likely to have a criminogenic effect and, for this reason, should be avoided, except in the most serious cases where a long sentence is the desired result.

There is some evidence which suggests that serious and chronic juvenile offenders will benefit most from placement in a long-term, intensive juvenile program (Lane, Lanza-Kaduce, Lonn and Bishop, 2002), so states should consider giving judges the power to sentence juvenile offenders to these types of programs instead of adult prison. A second option would be to give courts the option to allow some serious juvenile offenders to be given a “blended sentence” with a juvenile sentence consisting of intensive juvenile treatment and an adult sentence which would be suspended provided the juvenile does not violate the terms of his or her juvenile sentence (Redding, 2003).

A second policy implication is that states need to pass laws requiring jails and prisons to house all juveniles in areas separate from older inmates. Right now, children as young as 11 may be housed in adult jails in several states and nothing requires these jails or prisons to ensure that juveniles are kept separate from older inmates. This leaves many juveniles at increased risk for physical and sexual assault. The recent case where sexual battery charges were brought by Florida prosecutors against 33-year-old Emery Curtis Lewis for allegedly repeatedly raping a 15-year-old inmate housed in the same jail unit as Lewis highlight why these changes are needed.

States should also implement policies requiring juveniles to be housed in juvenile facilities whenever possible. With the particular vulnerability of those under 16, it would make good sense to require all inmates under 16 to be held in juvenile facilities unless a judge finds that they present a danger to other juveniles in the facility. This would not only help keep the younger inmates safe from older, predatory inmates, but it would also help these inmates benefit by education, counseling and other rehabilitation programs currently unavailable in many adult jails and Department of Corrections facilities.

A third policy implication goes along with the issue of juvenile competency for defendants 15 and under. In light of the findings discussed earlier, it would appear best to not to allow juveniles under the age of 14 to be tried in criminal courts, as a large number of these defendants are not competent to stand trial. It would also appear reasonable, in line with the recommendation given by Grisso et al. (2003), to require a competency hearing for any 14- or 15-year-old defendant before he or she can be tried as adult. Finally, in line with the recommendation given by Viljoen, Klaver & Roesch (2005), the presence of a lawyer during police questioning and subsequent legal proceedings should be mandatory for all suspects under 16.

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