Reference of Juvenile Offenders for Adult Prosecution: The Legislative Alternative to Asking Unanswerable Questions

DRAWING ON SOCIAL SCIENCE RESEARCH AND EMPIRICAL EVALUATIONS OF JUDICIAL WAIVER ADMINISTRATION IN MINNESOTA AND ELSEWHERE, IT IS ARGUED THAT JUDICIAL WAIVER STATUTES REQUIRE JUVENILE COURTS TO MAKE INDIVIDUALIZED DETERMINATIONS AS TO A YOUTH\u27S AMENABILITY TO TREATMENT AND THE DANGER TO SOCIETY POSED BY THE YOUTH\u27S RETENTION WITHIN THE JUVENILE SYSTEM THAT, USING CURRENT METHODS OF CLINICAL PREDICTION, SIMPLY CANNOT BE MADE WITH AN ACCEPTABLE DEGREE OF ACCURACY. HOWEVER, IT IS BELIEVED THAT ACTUARIAL METHODS BASED ON PRESENT OFFENSE AND PAST RECORD CAN BE USED TO IDENTIFY IN ROUGH TERMS THOSE JUVENILES LIKELY TO RECIDIVATE AND, ACCORDINGLY, POSE A THREAT TO PUBLIC SAFETY. THE VIEW IS EXPRESSED THAT A LEGISLATIVELY CREATED WAIVER MECHANISM THAT AUTOMATICALLY EXCLUDES CERTAIN YOUTHS FROM THE JUVENILE JUSTICE SYSTEM ON THE BASIS OF PRESENT OFFENSE AND PAST RECORD WILL NOT ONLY BE MORE ACCURATE IN IDENTIFYING THOSE WHO SHOULD BE TRANSFERRED, BUT WILL ELIMINATE JUDICIAL DISCRETION IN THE TRANSFER DECISION, AND MINIMIZE THE DANGERS OF INEQUITY AND DISCRIMINATION. THE MECHANISM PROPOSED IS A MATRIX THAT USES VARIOUS COMBINATIONS OF PRESENT OFFENSE AND PAST RECORD TO MAKE THE DECISION. SOME OF THE ADVANTAGEOUS CHANGES IN THE ADMINISTRATION OF JUVENILE JUSTICE THAT MIGHT BE EXPECTED TO FLOW FROM ADOPTION OF THE PROPOSED WAIVER MECHANISM ARE INDICATED. THE APPENDIX CONTAINS A PROPOSED BILL TO IMPLEMENT THE RECOMMENDATION. AN APPENDIX AND EXTENSIVE FOOTNOTES ARE PROVIDED. (AUTHOR ABSTRACT MODIFIED -- RCB