Pretrial Procedures Transfer hearings Detention Intake Diversion Petition and pretrial release ...
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Transcript of Pretrial Procedures Transfer hearings Detention Intake Diversion Petition and pretrial release ...
Pretrial Procedures Transfer hearings Detention Intake Diversion Petition and pretrial release Bail and preventive detention Plea bargaining (adjustment)
Transfer to adult court Transfer, waiver, bindover, removal Concurrent jurisdiction Excluded offenses (traffic, serious)
– Number of excluded offenses has increased
Judicial waiver to adult court
Kent v. U.S. Waived to adult court, despite
requests for a psychiatric evaluation, access to social service file, motions for a hearing
Found guilty in adult court for housebreaking and robbery, not guilty by reason of insanity for rape
Kent v U.S. (1966) Court ruled that cases of waiver
required: A hearing Access to counsel and access by
counsel to social service records Reason for the decision
Criteria to be considered Seriousness of offense Aggressive or violent Maturity of juvenile Record of the juvenile Public protection Potential for rehabilitation
Breed v. Jones Petition filed and he was adjudicated Found unfit for juvenile court at
disposition hearing Transferred to adult court Found guilty U.S. Supreme Court determined that
this was double jeopardy (5th amendment
Transfer hearings Full hearing Notice Right to counsel Statement for reasons
Debate over transfer Get tough vs. rehabilitation 1% now transferred (drugs most
common) Cases waived increased in early
1990s, number has now been decreasing
Debate Waivers do not necessarily increase
public protection; result may be the same in both juvenile and adult court
In one study., only 3% of juveniles tried in adult court received longer sentences than they would have received in juvenile court (1996)
Debate However, in another study those
waived to adult court received significantly greater sentences than those retained in juvenile court (1986)
Another problem is that transfers might be motivated by political considerations rather than the case
Debate One study found that juveniles
transferred to adult court no more dangerous than those retained
Transfer decisions not consistent: appears to be racial disparity
Problem of prosecutorial discretion: in some jurisdictions prosecutor makes the decision
Debate Need for transfer for very serious
cases: juvenile justice system not set up to deal with such cases
Juveniles transferred have greater security risks, less swift punishment, lower conviction rates, shorter incarceration, higher recidivism
Detention Temporary care of youths by the state
in a physically restricted facility pending court disposition or transfer to another placement
Shelter care: temporary care in physically unrestricting facilities
Detention Movement to remove status offenders
and dependent/neglected to less secure facilities, such as temporary foster care
60% of detainees are delinquent Many status offenders are runaways Increasing number of drug offenses
Detention Increase in the use of detention Majority are detained briefly and
released to parents, screened by intake probation officers
No uniform criteria for detention decisions
Race, class and # of parents might have an influence
Detention decision NCCD recommends that the standards
should be: likelihood of new offense, a danger to themselves or community, or likelihood of running away
Most jurisdictions require a detention hearing to extend the period of detention beyond 24 hours
Detention hearing This hearing should be: Without delay Right to notice and counsel
Provision of services
Detaining juveniles in adult jails
More common in rural areas Risk of victimization Few services Juvenile Justice and Delinquency Act
amended in 1989 to require states to remove juveniles from adult jails
Not clear how often this happens—most common estimate 100,000/year
Intake Screening of cases by the juvenile
justice system Decisions: send the youth home,
diversion, file a petition, file a petition and detain
Consent decrees and informal probation or informal adjustment
Intake Considerations: age, offense, prior
record, cooperativeness of child and parents, whether the youth can get appropriate services elsewhere
Legal rights? Intake traditionally handled by juvenile
probation Increased role of the prosecutor
Diversion Screening out children from the
juvenile court without judicial decision Roots: labeling theory Common criteria for diversion:
nonviolent or status offender, or alcohol or drug problem, age, no serious priors
Diversion Variety of mechanisms through
probation, the court, the prosecutor. Successful participation necessary to avoid court action
In some jurisdictions, 50% of youths are diverted
Net widening
Petition Filing a petition—can be filed by
police, parents, probation, or other social service agency
If the child admits to the allegations, a hearing might be scheduled and a treatment plan developed
Otherwise, adjudication hearing set
Pretrial Probation does an assessment Right to notice (youth, counsel and
parents) Continued detention? No right to bail, because it is a civil
proceeding, can be released to parents, detention is supposed to be rehabilitative, not punitive
Bail Some states do allow for bail for
youths All the problems of the bail system
then apply Without bail, youths have few rights
Preventive detention Detaining a person because of his/her
suspected danger to the community and because he/she might commit more crimes
Can a person be detained for acts he/she has not yet committed?
Supreme Court eventually upheld preventive detention for adults, but it is seldom explicitly applied
Preventive detention All states do allow for the preventive
detention of juveniles, because although adults have a right to liberty, juveniles have a right to custody, and can be detained for their own protection
Schall v. Martin Detention based on prediction of future
behavior not a violation of due process Must be procedural safeguards, such
as notice, a hearing and a statement of facts, before placement in detention
Plea bargaining Not a part of the juvenile court
originally, not seen as necessary because the court was there to help
Increasing role of the prosecutor Most states have now addressed and
regulate the practice, but the amount of regulation varies widely
More formal in urban areas
Plea Bargaining Considerable debate over whether it should
be used in the juvenile system It appears to be much less common in the
JJS as compared to the adult system, but on the increase
Less common because some of the incentives to plea bargain are less important in the juvenile system (I.e. dropping a felony to a misdemeanor)