Introduction society has always strived to ensure


The human civilization has from ancient times acknowledged the fact that the children are the future of the present civilization. Our modern era also believes in this ideology. This being the case, our society has always strived to ensure that children and the youth are given the best opportunity to excel.

However, despite all the good intention of the society, there are still a number of children and youth who continue to be on the wrong side of the law. Cole and Smith note that this increase in juvenile deliquescence is as a result of social, economic and other factors prevalent in this era (13). Policy makes have taken care to ensure that these troubled children are not left behind in the quest for a brighter future for all the children. Measures have been taken to ensure that the troubled children who are charged with offences are afforded a chance to rectify their mistakes and become respectable citizens through rehabilitation programs. This has been through the implementation of juvenile justice systems which have been characterized by their correctional as opposed to punishment role. Despite the presence of a functional juvenile justice system in the country, there has been a marked increase in crime rates among children and youths. As a result of this rising rates of crime amongst youths, policy makers have pushed for the increased transfer of juvenile offenders to criminal courts for adult prosecution.

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This is a move that is hailed by some as being the best manner to reduce juvenile crimes and therefore safeguard the society’s peace. However, there are opponents to these waivers who suggest that such moves result in the reduction in chances of rehabilitation for the juvenile offenders. This paper argues that juveniles should not be waived to adult courts unless they commit heinous crimes such as murder.

To reinforce this assertion, this study will perform a critical analysis of the various arguments presented both for and against transferring juveniles to adult courts. A brief overview of the juvenile court system will also be offered to act as a background for the paper.

Juvenile justice system

The Industrial Revolution of the late 19th century led to a mushrooming of urban settlements and the number of children living in cities rapidly increased (Sims and Preston 46). Juvenile delinquency became an issue in many cities and the welfare of the urban children became a primary concern.

The introduction of a separate system of justice for children borrowed heavily from the ideas proposed by the 18th Century English lawyer, William Blackstone (Yeckel 331). Blackstone aimed at categorizing people based on their ages and thus drawing a line between the age where one could be held accountable for their actions and an age where one was absolved from any crime committed. To a large extent, the earlier advocates of juvenile systems considered themselves to be on a humanitarian mission championing the rights of the children.

The major difference between the juvenile justice system and the criminal justice system was that juvenile courts aimed to rehabilitate rather than punish. Core to the courts principles was the mission to help troubled children. This benevolent nature of the system led to an informal and non adversarial approach that was not entangled in the procedural rules and formalities that characterized the criminal court systems.

Sim and Preston assert that this open nature was all in line with the ultimate goal of the courts which was to guide the young offender towards life as a responsible and law-abiding adult (48). The lack of well defined procedures meant that the juvenile court could take extra-legal factors in deciding on how to handle a case. The primary argument by the proponents of automatic judicial waiver of juvenile court jurisdiction is as a result of the increased juvenile crime and violence.

While it is true that juvenile crimes are markedly higher that they were in the previous decades, the same can be said about adult crimes. Allard and Young assert that there is no evidence that young people have become disproportionately more crime prone or dangerous at that than the rest of the population (8). Arguably, the alleged increase in juvenile crime is simply a function of population growth which is not only natural but to be expected. Allard and Young go on to demonstrate that the juvenile arrests for serious violent crimes have remained fairly average over the last 30 years (7). The underlying philosophy behind transferring juveniles to the criminal justice system is that more severe punishment even if at the expense of rehabilitation will result in reduced crime rates and therefore increase the public safety. However, studies indicate that juvenile offenders in the adult system are more likely to re-offend or commit more serious subsequent offenses than those who remain in the juvenile system (Allard & Young 4).

Youths and young offenders should not be prosecuted through the criminal justice system unless they commit major crimes such as murder. Instead they should be prosecuted through the juvenile justice system. This is attributed to the fact that juvenile courts are predisposed to have the best interest of the children or youths in consideration and offer some form of defense and rehabilitation for the children in juvenile facilities. As such, the underlying goal of the juvenile system is to guide the young offender towards life as a responsible and law-abiding adult (Sim and Preston 56). The arguments on juveniles raised by policy markers in the late 1800s resulted in a consensus that juveniles were developmentally inferior compared to adults and as such, juveniles would no longer be held criminally responsible for their actions (Feld 19; Bakken 14). However, while this attribute of benevolence is hailed by many proponents of the juvenile system, these benign actions have resulted in the lack of accountability for their actions by the youths.

Waivers can offset this condition since as Feld comments: The rehabilitative ideal has minimized the significance of the offenses as a dispositional criterion. The emphasis on the “best interests of the child” has weakened the connection between what a person does and the consequences of that act on the theory that the act is at best only symptomatic of real needs. (Bakken 13).

This argument suggests that the treatment of youths in the juvenile system does not lead to the offender feeling accountable for his/her crimes therefore resulting in a lack of liability. This is as opposed to the adult system in which one is held accountable for their crimes and made to pay for them to the maximum extent permissible by the law. In addition, proponents of the waiver to prosecute the youth in the criminal justice system assert that one of the goals for transferring juvenile offenders to the adult criminal courts is to deter them from taking part in criminal activities in future. However, a research carried out by Donna Bishop in 1996 to highlight the differences in outcomes of juvenile courts compared to the criminal courts on youths showed that juvenile offenders who were transferred to the adult courts received more severe sentences than their counterparts in the juvenile system.

In addition to this, the findings showed that the transferred youth had higher re-arrest rates (54%) compared with 32% for the youths dealt with by the juvenile courts ( Rosenheim 87). In light of such findings, advocates of the juvenile court systems argue that the taking up of waiving as a means to reduce future crimes is a faulty policy. While the juvenile system may not be flawless, these findings demonstrate that the system has not altogether failed and should therefore be experimented with further. To further reinforce this argument, Watt, Howells and Delfabbro use Sigmund Freud’s psychoanalytic theory to explain why individuals commit crimes (150).

In this theory, Freud believes that all humans have underlying desires. As such, it is only through socialization that these urges can be controlled. Therefore, a person with poor social skills develops a personality disorder which forces him/her to exhibit antisocial tendencies. Those that bring out these tendencies become criminals while those who suppress them become neurotics. This theory is therefore a proponent to the fact that criminals are social misfits trying to compensate for their weaknesses. Bearing this in mind, taking young offenders through the criminal justice system does not help them change but instead, makes them more antisocial thereby increasing their chances of committing more serious offences.

As Fisher reiterates, the acts of violence exhibited by youths and young offenders are triggered by their need to empower themselves in a society that constantly undermines them (109). Therefore, the solution should not be prosecuting them but rather, to find solutions to factors that lead them into committing crime. To further support his argument as a proponent of youth prosecutions in the criminal justice system, Bakken states that juveniles are capable of hideous crimes as was demonstrated in the Kent v.

United States case. A 16 year old, Morris A. Kent was charged with breaking into a woman’s apartment, robbing her and raping her (6). The juvenile court system is evidently not equipped to deal with such kind of violent crimes as its sentencing does not include life imprisonment or even the death penalty. Bakken acknowledges that it is cases such as this that make juvenile transfer not only desirable but necessary so as to enable the offender to be tried on criminal charges (7). The waiving system presents a mode through which these malicious offenders can be kept away from the society therefore preserving social harmony. Without waivers, crimes such as those committed by Kent would only be punished marginally and the offender would be free to rejoin the society after only a few years of incarceration.

However, Watt, Howells and Delfabbro disagree with this argument by using the interactionist theory of crime causation which asserts that an individual’s interaction with criminals may psychologically influence him/her to commit crime (147). The theory proposes that the chances of an individual committing crime as a result of peer pressure are significantly high. According to Fisher, constant interactions with criminals play a central role in the development of criminal behaviors (105). The author states that from these associations, individuals are influenced into committing crime and becoming notorious criminals. This theory proposes that a petty offender can become a hardcore criminal through the association with criminals. It assumes that from such interactions, an individual learns how to think, act and react to different situations like a criminal.

As such, imprisoning young offenders may invariably make them worse than they were before getting into the system. To this regard, Watt Howells & Delfabbro propose a more positive approach whereby young petty offenders are enrolled in the juvenile justice system where there are positive reinforcement programs that may help them change their behaviors (143). However, Gaines and Miller argue that criminal convictions carry with them a certain stigma as a person is marked as a felon for the rest of their lives (62). The authors suggest that this “stigmatization” by the society is in fact healthy as it also adds to the deterrence factor since people do not want to be viewed as social misfits. The juvenile court system is structured in such a way that these long-term consequences to the offender are not present.

In as much as this statement holds true, adult conviction also results in some socioeconomic consequences such as the person being compelled to report their conviction on job application or being barred from particular types of jobs. These factors have serious psychological effects on an individual. For example, no matter how much an individual is trying to change his/her ways, the criminal records and the social limitations associated with them will never go away. As such, these realities often foster feelings of frustration and other antisocial tendencies. These are key factors that may lead an individual into causing crime as a means of acting-out. These bleak realities further support the statement that youth offenders should not be go through the criminal justice system and that other alternatives should be found. The rationale behind the establishment of the juvenile system was to protect the interests of the children who were deemed as being less liable than adults since they were morally and emotionally less developed (Rosenheim 91).

This almost paternal view is the main difference between juvenile courts and criminal courts whereby the juvenile courts emphasis on the “best interests” of the violators. By indiscriminately waiving juvenile offenders to the adult court system, the criminal justice system will have failed in its initial goal which was to protect the interest of young offenders and hopefully rehabilitate them into useful members of the society. However, it can be argued that the juvenile system was established in an era when the capability and emotional intelligence of the youth developed at a fairly slower pace.

In the modern era, children are exposed to all kinds of information which result in greater understanding. As such, the laws should be amended to accommodate these new realities.


This study set out to argue that juveniles should not be waived to adult courts. To underscore this point, the paper has performed a brief overview of the juvenile system in America as well as an in-depth analysis of the arguments forwarded both for and against waivers. However, this paper has clearly demonstrated that there are other means through with juvenile criminality can be tackled. Considering the risk that waivers could results in the conversion of juvenile offenders into hardcore criminals, the evidence in this paper suggests that more intervention-based measures should be implemented to ensure that young offenders do not get into the criminal justice system unless they commit heinous crimes.

Works cited

Allard, Patricia and Malcolm Young. Prosecuting Juveniles in Adult Court: Perspectives for Policymakers and Practitioners, 2002. Web. 08 November 2010. http://www. Bakken, Nicholas. (2007). You do the Crime, You do the Time: A Socio-Legal History of the Juvenile Court and Transfer Waivers, 2002. Web.

08 November 2010. Burrow, John. (2005). Punishing Serious Juvenile Offenders: A Case Study of Michigan’s Prosecutorial Waiver Status, 2002.

Web. 08 November 2010.

edu/archives/vol-9-no-1/01_Burrow.pdf Cole, George and Cristopher Smith. The American System of Criminal Justice. New York : Cengage Learning, 2006. Print. Fisher, Bonnie. “Crime Prevention.

” Journal of Security Education 2.1 (2006): 103 – 111. Print. Gaines, Larry and Roger Miller. Criminal Justice in Action. New York: Cengage Learning, 2006. Print. Rosenheim, Margaret.

A Century of Juvenile Justice. Chicago: University of Chicago Press, 2002. Print. Sims, Barbara and Pamela Preston. Handbook of Juvenile Justice: Theory and Practice. California: CRC Press, 2006. Print.

Watt, Bruce, Kevin Howells and Paul Delfabbro. (2004). “Juvenile Recidivism: Criminal Propensity, Social Control and Social Learning Theories.” Psychiatry, Psychology and Law 11.1 (2004): 141 – 153.

Print. Yeckel, Josef. “Violent Juvenile Offenders: Rethinking Federal Intervention in Juvenile Justice.” Journal of Urban and Contemporary Law 51 (1997): 331. Print.


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