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April 9, 2009

Scholarly exploration of applying Apprendi to juve transfer decisions

I just noticed on SSRN this new paper by Jenny E. Carroll, titled "Rethinking the Constitutional Criminal Procedure of Juvenile Transfer Hearings: Apprendi, Adult Punishment and Adult Process."  This looks like a must-read for not only for those who enjoy trips to Apprendi-land, but also for anyone who follows juvenile justice issues.  Here is the abstract:

This article makes valuable new contributions to the burgeon-ing scholarly discourse on Apprendi v. New Jersey -- a landmark decision that celebrates its tenth anniversary this year. It builds on the author's experience as a public defender, during which she pioneered the surprising but straightforward argument that under Apprendi, findings that justify transferring a juvenile to adult court must be proven to a jury beyond a reasonable doubt.

Apprendi requires that any fact authorizing a sentence higher than the otherwise applicable statutory maximum must be found to a jury using a beyond a reasonable doubt standard. This tenet applies directly to juvenile transfer hearings, which rely on a consideration of facts to determine whether a juvenile should face trial and sentence in adult court.  The facts that serve as a basis for transfer result in exposure to a higher sentence than could be imposed if the offender remained in juvenile court.  Despite Apprendi's readily apparent application, juvenile courts have refused to apply Apprendi to juvenile transfer hearings.  This article presents this argument and critiques the reasoning of courts that have refused to apply Apprendi in this context.  It then explores the theoretical underpinnings of courts' reluctance to apply Apprendi, filling a scholarly void that exists at the intersection of Apprendi and the juvenile justice system.

April 9, 2009 at 05:22 PM | Permalink


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This may have the perverse effect of encouraging direct file systems where prosecutors rather than judges decided who may be tried as an adult.

Posted by: ohwilleke | Apr 9, 2009 5:33:19 PM

I am not an attorney but have been kicking around awhile and somewhat familiar with juvenile law. I would argue the juvenile law originally wasn't based on the criminal acts that are being perpetrated by these young offenders, right? So, in reading your blog what is it you think should be done with the juvenile justice system if u don't mind me asking.

Posted by: Sandy | Apr 10, 2009 1:25:04 AM

The juvenile court system was a progressive era (i.e. late 19th century and early 20th century) innovation that was based upon the premise that juveniles were less culpable and more amenable to reform than adults, so they should be handled in a system focused on rehabilitation rather than criminal responsibility. Reformers recognized that select individuals might be more culpable than their chronological age might indicate and allowed juvenile judges to make case by case reassignments of individuals in particular serious cases to the adult criminal justice system, on the theory that they would not benefit from what the juvenile court system had to offer them.

This coincided with a number of other reforms in the criminal justice system, like the narrowing of the availability of capital punishment, the systematic organization of professional police forces, expanded use of incarceration, and more formal due process in post-arrest criminal procedure. This was also a time when massive immigration was changing the character of American society, when political machines were allegedly corrupting the political process, when class divides were stark, and when cities were being flooded with poor families leaving farms to work in factories and adapting not always very well to urban life (juveniles courts were an urban phenomena, at least as first).

In particular, it was a time when child labor was viewed with increasing disfvor. More kids who would have previously been working on the farm under the supervision of parents who were also present and working on the farm, were now idle in urban settings, often with little supervision. Modern single mothers who worked in factors and raised their kids alone were also just starting to emerge around this time period (and subject to great societal derision). Hence, new concerns arose about juvenile crime.

There is little evidence that juvenile crimes were less serious when the juvenile justice system was created than they are now. Indeed, a lot of criminal justice scholarship sees strong parallels between the criminal gangs funded by the illegal drug trade today, and the alcohol prohibition funded organized crime of the Great Depression (during which juvenile justice systems were widespread).

But, it seemed as absurd to put a twelve year old in jail for a long time for a fight then as it does now, but the traditional rural approach of having dad take a rowdy child to the woodshed or assign extra chores didn't work as well in the city, so alternative middle ground was needed.

Also, while the crimes haven't changed much, the time has changed. The 1980s and 1990s dramatically increased the length of prison sentences for adults, while leaving juvenile sentences relatively unscathed. So, the gap between juvenile sentences and adult sentences has grown much wider, which has placed pressure from those with a law and order approach to crime to shift juveniles committing serious crimes to adult court where the punishments are much more severe due to recent legislative changes.

Posted by: ohwilleke | Apr 10, 2009 2:58:00 PM

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