Some juvenile cases get transferred to adult criminal court through a process called a "waiver"—when a judge waives the protections that juvenile court provides. Usually, juvenile cases that are subject to waiver involve more serious crimes, or minors who have been in trouble before. Although being tried in adult court gives a juvenile more constitutional protections, it has distinct disadvantages too—including the potential for a more severe sentence and the possibility of serving time in an adult correctional facility. (To learn more about juvenile court procedures, see Nolo's article Juvenile Delinquency: What Happens in a Juvenile Case?)
Below you'll find an outline of the waiver process, factors the court will consider in deciding whether to transfer a juvenile to adult court, and the pros and cons of trying juveniles in adult court.
In most states, a juvenile offender must be at least 16 to be eligible for waiver to adult court. But, in a number of states, minors as young as 13 could be subjected to a waiver petition. And a few states allow children of any age to be tried as adults for certain types of crimes, such as homicide. The current trend among states is to lower the minimum age of eligibility for waiver into adult court. This is due in part to public perception that juvenile crime is on the rise, and offenders are getting younger.
Factors that might lead a court to grant a waiver petition and transfer a juvenile case to adult court include:
There are three ways that transfer proceedings can usually begin—the most common is through the prosecutor's request. But the juvenile court judge can also initiate transfer proceedings. And some state laws require that juveniles be tried as adults in certain types of cases, like homicide. (To learn more about state laws requiring juveniles to be tried as adults, see the "Automatic Transfer Laws and Reverse Transfer Hearings" section below.)
If the prosecutor or judge seeks to transfer the case to adult court, the minor is entitled to a hearing and representation by an attorney. This hearing is called the waiver hearing, fitness hearing, or certification hearing. Usually, the prosecutor must show probable cause that the juvenile actually committed the charged offense. (To learn more about probable cause, see Nolo's Criminal Arrests & Interrogations FAQ.)
If the prosecutor has established probable cause, the judge must then decide on the minor's chances at rehabilitation as a juvenile. To make this decision, the judge will often hear evidence on the minor's:
If the judge transfers the juvenile case to adult criminal court, the case starts there at the beginning—typically with the arraignment (formal, in-court notice of charges against the juvenile).
Some states have "automatic transfer" laws that require juvenile cases to be transferred to adult criminal court if both of the following are true.
Juveniles subject to an automatic transfer can still request a transfer hearing in juvenile court. During that hearing—called a reverse waiver or reverse transfer hearing—the juvenile (through an attorney) has the burden of convincing the judge to reverse the automatic transfer and allow the juvenile to be tried in juvenile court.
Usually, juveniles and their attorneys fight to keep a case in juvenile court. But there are also advantages to being tried in adult criminal court. Here are some of the pros and cons for juveniles whose cases are waived to adult court.
Sometimes, it can be advantageous for a juvenile to be tried in adult court. Here are some reasons why.
Some of the disadvantages for juveniles in adult court include the following:
To learn more about the arguments juveniles can make to avoid transfer to adult court and how friends and family can help a juvenile who is in trouble with the law, get The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara Berman (Nolo). If you need to consult with an attorney experienced with criminal law and the juvenile justice system, you can turn to Nolo's trusted Lawyer Directory to find a lawyer near you.