Transfer of Child Offenders to Adult Criminal Courts in the USA: An Unnecessary Exercise, Unconstitutional Practice, International Law Violation, or All of the Above?

There is an ongoing debate over the legality and effectiveness of the use of judicial waiver as a tool to fight violent crimes, including those committed by children in the United States. Judicial waiver or transfer of juveniles is a process by which child offenders are transferred from the juvenile court to adult criminal courts to be tried and sentenced as adult offenders. Despite the implicit recognition of the constitutionality of this practice by the United States Supreme Court, this paper contends that the transfer of child offenders to adult criminal courts violates key provisions of the Convention on the Rights of the Child (“CRC”). Article 40(2)(iii) of the CRC guarantees each child offender the right to have their case adjudicated by a competent and specialized court (such as a juvenile court), regardless of the gravity of their acts. The right to a competent court, which is one of the components of the right to a fair trial, is part of the customary international law that should be enforced by all nations, including those who have ratified the CRC and those who have not (like the United States). It also suggests that judicial waiver is an ineffective practice, as its deterrent virtue against youth recidivism and juvenile violent crimes is largely unproven. It correspondingly highlights that the recidivism rates are lower for child offenders tried in juvenile court than for those who are transferred to adult criminal courts. This paper consequently recommends the restoration of the full jurisdiction of juvenile courts over all child offenses and proposes the reversal of the judicial waiver laws be-cause of their failure to ensure children’s right to a competent and specialized system