Friday, May 4, 2012

Who is boy, who is man?

For the past two weeks I've been working with my court chief on presenting a homicide case to the juvenile judge in a certification hearing - the issue being whether she should transfer his case to the adult court for trial.

I thought it might be interesting to share a little on how that works, as this kind of hearing is not something I've done before. (There are several news stories about this particular case, here is one and here is another.)

First, the legal standard: for a juvenile to be transferred to adult court for trial, the judge must find that (to save on ink I'm going to use "he" in hypos etc.) he committed the charged offense, with the standard of proof being "probable cause" as opposed to the usual trial standard of "beyond a reasonable doubt." As you may know, the probable cause standard is a lot lower, and is the one police officers use to arrest someone they suspect of having committed a crime.

Additionally, the judge must consider the following factors:
  1. whether the crime was against persons or property;
  2. the previous history of the juvenile;
  3. the sophistication and maturity of the juvenile;
  4. prospects of rehabilitation; and
  5. the safety of the community
I could probably talk fairly freely about the hearing, at least everything that was reported, but the young man is still facing an adult trial so I hope you will forgive me if I keep my comments rather general. I don't want to prejudice any potential jurors and, frankly, it's a pretty good rule of thumb for a prosecutor not to comment too much on on-going cases.

So, how does the prosecution go about proving that a juvenile should be certified as an adult?

One invaluable tool is the testimony of a forensic psychologist. In our case, as in all, the shrink (sorry, I can't keep typing out "forensic psychologist") interviews the juvenile and digs into their background to give the court insight in to #s 3. , 4. and 5. above (rehabilitation and community safety are obviously closely related). It's important, obviously, that the shrink it not a paid lackey of either side, but is objective and thorough. That's certainly been my (limited!) experience.

One thing that surprised me about the way this psychological evaluation is carried out, though it makes perfect sense, is that the shrink does not consider as part of his analysis any facts about the offense charged. In other words, he makes his findings and recommendations based on factors outside the alleged crime.

The first and second factors are established very quickly, of course. The judge will know going in whether it's a burglary or a murder (in our case, allegations included murder and the attempted murder of another kid). And of course the formal criminal history of a juvenile is a matter of record.

One other thought on the process, because I've seen comments in the past that it seems disingenuous to have a rule saying "a child is a child unless we say otherwise." And that sounds like an eminently fair criticism at first blush. But going through the process made me see that, in a perfect world, we'd abandon the hard-and-fast rule that says you're an adult at age 17 and instead thrash out this issue for every child, especially those charged with serious crimes. The slow, often painstaking analysis of a kid's attitude, mentality, remorse, maturity, etc. via probation officers and forensic psychologists seems like a much better (fairer even?) way than a fairly abstract date.

But wow, that would be impossible unless you all want to become forensic psychologists. Although I'm sure they get paid pretty well. . .


  1. Interesting process. In NY, at 16 you are an adult no matter what the crime. At 13,14, and 15, the defendant is charged with murder as an adult and then it is the DA's decision whether to transfer from supreme court to family court for the proceeding.

  2. Wow, so contrary to what one might assume, NY is swifter to adultify (yes, it's a word. Now.) kids than Texas. Interesting, thanks for sharing that.

  3. If a young person is convicted of such a serious crime after being tried as an adult and receives a custodial sentence, as is usual, in what sort of institution, juvenile or adult, is the sentence served?

  4. Hi Mary. The sentenced would be served in an adult prison.

  5. Lori in CaliforniaMay 5, 2012 at 9:58 AM

    Adding on to Mary's comment: If the underage "adult" is acquitted of the crime, does he then become a juvenile again - or does he retain his adult status in regard to all other adult rights?
    As far as I'm concerned, if you are treated as an adult with regards to crime, you should also be treated as an adult with regards to everything else! We should not be able to pick and choose which rights should be accorded to someone!

  6. Great question, Lori. And to be honest, I don't know but I would imagine he reverts back to juvenile status. By "all other adult rights" do you mean things like voting and drinking etc? Those would remain the same, as a certification for a criminal offense is only directed at criminal consequences. (By the way, it's not a possibility for this case because the individual will be 17 later this month anyway.)

  7. So why put a juvenile in an adult prison if your aim is to avoid future offences by that child? Up until about 21 you've got an individual who's fairly malleable and vulnerable. On balance of probabilities adult prison is more likely than juvenile detention to produce an individual that is completely institutionalised with a high risk of mental illness simply because it's ill equipped to deal with them. You're effectively maximising the chance of reoffending.
    Prosecutors are smart people, you already know this, so what keeps the majority of D.A.'s from using their influence to get this changed?

  8. Tech Vault: fair question, and I have a couple of responses. First, you are right that juvenile detention offers more in the way of 'rehab.' No doubt. But as anyone who works in the business will tell you, if a kid has no interest in changing then you can't force it on someone. When you have a juvenile aged 16 who continues to be violent in detention, even knowing his certification hearing is approaching, who's rejected all attempts to help him, then rehab is a non-issue.

    We also have to think about the other kids in TJJD (formerly TYC). If, as you correctly presuppose, we're trying to restore them to a productive way of life, what happens when you put an angry, non-compliant, and potentially violent youth in with them? Not only is their recovery, as it were, jeopardized, but so is their actual safety.

    Finally, juveniles don't stay in TJJD for long, they have to be out by the time they are 19 and so sentences are necessarily usually relatively short. And we as prosecutors have to think of more than just that one kid - we have to consider the safety of the community and about the family who has lost a loved one. How would you feel if someone murdered your wife/husband/child and got a two-year sentence? I sure know how I'd feel.


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