Who Decides to Try a Juvenile as an Adult?

By , Attorney · New Mexico School of Law
Updated October 14, 2020

In most states, when children are accused of criminal acts, the case most often is addressed in a juvenile court, not in the adult criminal court system. All states, however, have provisions that allow or require the courts to treat juveniles in certain cases as adults. In those cases, the juvenile is tried in adult criminal court and, if convicted, punished as an adult. The cases in which children are tried as adults usually involve very serious charges or a child who already has a significant history of criminal activity.

Purpose of the Juvenile Justice System

The juvenile justice system is very different from the adult criminal justice system because juvenile justice focuses on rehabilitation, while the adult system focuses primarily on punishment. Juvenile justice courts were created in the United States based on the view that children are not mature enough to be held responsible for their actions in the same way as adults, and the belief that children can be rehabilitated. In most states, anyone under the age of 18 who is accused of a crime is considered a juvenile, but some states have lowered the cut-off age to 16 or 17.

Adjudication of Delinquency

In juvenile courts, a child accused of a crime is not convicted of a crime nor sentenced to jail or prison. Instead, if the court finds that a child has committed a criminal act, the child is considered delinquent or "in need of supervision." The court then determines what services the child needs to be rehabilitated and whether the child needs to be confined during the rehabilitation process for the child's own or the public's safety. The court can confine a child to a juvenile facility until the child reaches the age of 18 or, in some states, until the child is 21.

When Can a Child Be Tried as an Adult

In the American justice system, there are three types of legal provisions under which children can be tried as adults. Many states have a combination of two or more of these provisions.

Waiver or Transfer

Almost every state has a provision that gives the judge in juvenile court discretion to transfer any case to adult court. This also is known as waiving the exclusive jurisdiction of the juvenile court to hear cases involving juvenile offenders. (Jurisdiction is a court's power or authority to hear a case. A judge can hear only those cases in which the court has jurisdiction. An adult criminal court cannot address criminal cases involving child defendants because it has no jurisdiction in such cases unless the juvenile court waives or transfers jurisdiction.)

Under a waiver or transfer process, the prosecutor can request that the case be transferred and the judge decides whether to grant the request. The judge can also decide to transfer the case without a request.

Factors that may influence the judge's decision or a prosecutor's request to transfer a juvenile case to adult court include:

  • the seriousness of the offense and whether the child caused serious harm to another person
  • the age of the juvenile
  • the juvenile's record of criminal activity, and
  • whether the juvenile is amenable to treatment. Someone not amenable would be a juvenile who has already received counseling and other services but continued to commit crimes, showing that the rehabilitative response of the juvenile system has not worked and isn't likely to work in the future.

If a minor is charged with murder, has almost reached the age of majority, has a long record of prior criminal activity (especially violent crimes like assault and battery), and already has received services in the juvenile justice system like counseling and confinement in a juvenile facility, a judge likely would decide the minor should be charged as an adult. If a crime is particularly violent and brutal, the judge could order the child tried as an adult based on only the crime, regardless of the child's age, criminal history, or other factors.

Some states have age limits for waivers and transfers, such as age 14, but many have no age limit, meaning a judge can decide to transfer a murder case involving an eight-year-old defendant to adult court, as we see reported in the national media from time to time.

Statutory or Legislative Exclusion

In some states, the law requires that certain serious crimes, such as murder, offenses punishable by death or life in prison, and serious crimes involving harm to another person be charged in adult court even if the defendant is a minor.

Some states follow the waiver provision for any crime except certain identified crimes, like murder or crimes involving firearms, which are required to be charged in the adult criminal court. If a child is charged with an identified crime, the judge has no discretion and the child must be tried in adult court. For all other crimes, the judge decides whether to treat the child as a juvenile or an adult.

Concurrent Jurisdiction

In most states, the adult criminal court has no jurisdiction in cases involving a juvenile defendant. In just a few states, both the juvenile courts and adult criminal courts have jurisdiction over cases involving certain crimes (such as murder) charged against juvenile defendants. This allows the prosecutor to decide whether to charge the case in juvenile court or adult criminal court.

Allowing the prosecutor to decide whether to try a child as an adult is a controversial policy because the prosecutor is not a neutral party in the case. Most states have chosen to have a judge decide or to use statutory exclusion, or both.

Reverse Transfer

States that have statutory exclusion or concurrent jurisdiction also sometimes have laws that allow a juvenile defendant to petition the court to transfer the case back to juvenile court. Again, the factors the court considers in deciding whether to grant a reverse petition include the seriousness of the crime, the juvenile's age, criminal history, and any other indicators as to whether the minor can be rehabilitated.

If a child has no criminal history, is a good student, and has never had counseling or access to other services, the defense might be able to successfully argue that the court system attempt to rehabilitate the child rather than sentence the child as an adult. If the evidence indicates the child committed a cold-blooded crime, such as the gruesome murder of another child or other vulnerable person, the circumstances of the crime may make it difficult to get the case transferred to juvenile court. However, if the charge is attempted murder and the child did not follow through with his intentions or no one was harmed, the judge may be more willing to consider transferring the case to juvenile court.

Blended Sentencing Systems

Some states have sentencing schemes under which a court can blend adult and juvenile sentencing options when sentencing a child who has been convicted of a crime as an adult. This allows the judge to send the child to a juvenile facility, for instance, rather than to adult prison. Another alternative available to the judge in a blended sentencing scheme is to suspend the adult prison sentence as long as the young defendant complies with all provisions of a juvenile sentence (counseling, probation, etc.). If the defendant does not comply with the juvenile sentence, the judge can then impose the adult prison sentence.

Trying Children as Adults for Minor Crimes

In most states, minor crimes like traffic offenses, minor in possession of alcohol, and hunting and fishing license violations are all heard in criminal court. These minor crimes are not addressed in juvenile court because they usually or seldom involve jail time.

The Importance of Legal Representation

If a juvenile is charged with a serious crime, it is extremely important that the child be represented by an attorney who is familiar with the local juvenile justice system and laws regarding trying children as adults. If you are the parent of a child who has been charged with a crime, contact an attorney as soon as possible. Even before charges have been filed, speak with an attorney before allowing law enforcement officers or representatives to interview or question a child about a criminal matter. Also make sure to ask the attorney whether the child's record, at some point, can be expunged or sealed.

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