When I first came to the court, everybody was talking about the "juvenile superpredators," so I kept waiting on the superpredators. They never came. I never saw any superpredators in my court. What I saw were fourteen- and fifteen-year-olds, scared to death.
-Judge David A. Young, Circuit Court for Baltimore City, June 5, 1998
With frequent references to "juvenile predators," "hardened criminals," and "young thugs," U.S. lawmakers at both the state and federal levels have increasingly abandoned efforts to rehabilitate child offenders through the juvenile court system. Instead, many states have responded to a perceived outbreak in juvenile violent crime by moving more children into the adult criminal system. Between 1992 and 1998, at least forty U.S. states adopted legislation making it easier for children to be tried as adults.1
Maryland's juvenile justice policy is indicative of this nationwide trend. In 1994, the state overhauled its juvenile justice system to exclude a large number of offenses from the jurisdiction of the juvenile courts, in effect making it easier to try a child as an adult,2 and in 1997 the General Assembly approved a measure opening juvenile court hearings to the public when the child is charged with committing an offense that would be a felony if committed by an adult.3
In Maryland and elsewhere in the United States, the trial of children as adults often fails to provide children with the special safeguards and care to which they are entitled under international law. The decision to send children into the adult system has been criticized as arbitrary and unfair, with racial and ethnic minorities overrepresented among the juvenile population transferred to criminal court. Once in the adult system, youth are deprived of the wide variety of rehabilitative
sentencing options that they might be eligible to receive in the juvenile court system-sentencing options that are designed to give them the tools they need to turn their lives around and become law-abiding members of society. A conviction in adult court leaves an adolescent with a lasting criminal record. Finally, as detailed in subsequent chapters of this report, youth charged as adults may be placed in pretrial detention in adult jails, often called "local detention centers," facilities which often lack the infrastructure, programs, or staff to handle juveniles.
The Myth of the "Superpredator"
Proponents of measures to try increasing numbers of juveniles as adults assert that violent crime by youth is on the upswing and project even higher levels of crime by violent juvenile offenders in the future. Often couching their arguments in extremist terms, academics and politicians have contended that youth in ten or even twenty-five years will generate "a coming storm of juvenile violence."4 In a notable example, Rep. Bill McCollum warned a House of Representatives subcommittee in April 1996 to "brace yourself for the coming generation of `super-predators,'"imputing criminal tendencies to infants not yet out of their diapers.5
Though these pronouncements make good sound bites, they do not match up to the facts. The truth is that the number of juvenile arrests nationwide has declined in recent years. The Federal Bureau of Investigation (FBI) reports that arrests of juveniles for offenses included in the Crime Index decreased by nearly 4 percent from 1993 to 1997, the last year for which final data are available. Juvenile arrests for violent crimes-murder, rape, robbery, and aggravated assault-were down by 6 percent during the same time period.6 Prof. James Q. Wilson, one of those who predicted a rise in youth crime, conceded in January 1999, "So far, it clearly hasn't happened. . . . That is a good indication of what little all of us know about criminology."7
It is true that the drop in reported arrests during the last decade comes after substantial increases in juvenile arrests in some violent offense categories, notably homicide and aggravated assault. While these increases would appear to lend support to those who claim that crime by juveniles is on the rise, relying on arrest data to measure the crime rate is misleading. Arrest data, the only official statistics on youth violence in the United States, overestimate the number of violent acts attributable to youth. As Prof. Franklin Zimring points out, "Younger offenders commit offenses in groups much more often than older offenders, and they are also arrested in groups much more often."8 Moreover, in the case of arrests for aggravated assault, there are substantial indications that changing police standards, rather than increased violence by adolescents, explain the increased number of arrests in that category.9
Even the increases in juvenile homicide arrests do not support measures that target youthful offenders. Eric Lotke and Vincent Shiraldi observe that "the reality is that very few Americans are in personal danger of homicide victimization at the hands of a juvenile. . . [J]ust four cities-Chicago, Los Angeles, New York and Detroit-had a combined total of 929 juvenile homicide arrests in 1994, accounting for 30 percent of the 3,102 juvenile homicide arrests in the nation."10 Far more serious are killings by adult offenders, who reportedly "commit eleven of twelve homicides, including three-fourths of the murders of children and teen-agers, statistics that are ignored in the furor over `killer kids.'"11
To a large extent, however, the modern-day legend of the coming superpredators exempts itself from the need to face reality. Zimring notes, "To talk of a `coming storm' creates a riskless environment for getting tough in advance of the future threat. If the crime rate rises, the prediction has been validated. If the crime rate does not rise, the policies that the alarmists put in place can be credited with avoiding the bloodbath. The prediction cannot be falsified, currently or ever."12
This environment allows lawmakers and academics to dismiss the current trend, which shows juvenile crime to be on the wane, with dire forebodings. Indeed, Representative McCollum asserted, "Today's drop in crime is only the calm before the coming storm."13 Such an approach takes a demographic projection-that there will be more teenagers in the future-and wildly extrapolates from studies of chronic delinquency to conclude that a youth crime wave is in the wings. This is phony criminology, relying as it does on a predictiontechnique that is, in Zimring's words, "empty of logical and empirical content." 14 Zimring continues:
If the argument implied is that the number of homicides or robberies generated by a youth cohort can be easily predicted by its relative size, this is far from obvious in the record of recent American history. The rate of youth violence increased in the late 1980s even as the youth population declined, and the volume of youth violence decreased after 1993 as the youth population grew.15
The modern-day legend of the coming superpredators has driven legislative approaches to juvenile and criminal justice, overcoming hard facts and sound research.
A Flawed Response
In response to the perceived increase in violent juvenile crime, between 1992 and 1998 at least forty states, including Maryland, made it easier to try children as adults. Juveniles may be transferred to criminal court in a variety of ways, each of which carries some potential for arbitrary decisionmaking. In particular, African-American and other minority youth may be disproportionately transferred to the criminal courts.
The negative aspects of transferring youth to adult courts are not balanced by concrete results. The proponents of such measures argue that criminal courts can issue harsher sentences, which in turn will deter other youth from committing violent crime. There is no clear indication, however, that children tried as adults receive longer sentences than they would before juvenile court judges or that treating youth as adults actually reduces crime.
How Children Are Sent to Adult Courts
The way youth can be moved from the juvenile courts to the criminal courts differs from state to state. In some states, the prosecutor has nearly complete discretion over whether to place a juvenile in the adult system. Other states automatically exclude certain charges from the juvenile court's jurisdiction. In addition, nearly all states give juvenile court judges the discretion to waive their jurisdiction in particularly serious cases.16
Such provisions are not new; from their creation, the juvenile courts have always had some mechanism for transferring the most serious offenses to the adult criminal courts.17 Historically, transfers were subject to judicial discretion and limited to the most serious offenders who in the judgment of the court could not be rehabilitated. The difference is that in recent years, the shift in emphasis fromrehabilitation to punishment and incapacitation has led to a proliferation of transfer provisions.18
In Maryland, many children are automatically tried as adults if they are accused of committing a serious crime, such as murder, rape, or armed robbery; depending on the age of the youth, these offenses are automatically excluded from the juvenile court's jurisdiction.19 A child who is automatically brought before the criminal court under one of these provisions may ask to have his or her case returned to the juvenile court, a procedure often called a "reverse waiver." In deciding a reverse waiver application, the criminal court decides whether a transfer to the juvenile court is "in the interests of the child or society," taking into account the child's age, mental and physical condition, amenability to treatment in a juvenile institution or program, the nature of the offense charged, and the public safety.20
Even when Maryland law does not automatically place cases within the jurisdiction of the criminal court, the juvenile court may waive its jurisdiction in any case, even one involving a misdemeanor charge, in which the child is fifteen years of age or older. The juvenile court may also waive jurisdiction over cases involving younger children who are accused of very serious crimes, such as murder or rape.21 In order to waive jurisdiction under these discretionary provisions, the juvenile court must consider the same five factors the criminal court would consider in a reverse waiver hearing.22 If, after considering those factors individually and in relation to each other, the court finds that the child "is an unfit subject for juvenile rehabilitative measures," it may waive its jurisdiction and send the juvenile to adult court.23
The Burden on the System
The increased use of transfers create additional burdens on the criminal courts, often without a corresponding increase in resources. The U.S. Department of Justice's Bureau of Justice Statistics reports that the number of delinquency cases judicially waived to criminal court increased 71 percent between 1985 and 1994, from 7,200 to 12,300 cases annually. These figures do not capture the number of children whose cases were automatically sent to the criminal courts.24
The Potential for Arbitrary Decisionmaking
Decisions to transfer youth from the juvenile courts to the criminal courts are inherently problematic, underscoring the need to limit such transfers to the truly exceptional cases. Statutory automatic transfer provisions and prosecutorial direct-file provisions can both be abused if prosecutors overcharge a child in order to secure the child's automatic transfer to criminal court. Automatic transfers, in turn, do not allow for an individualized assessment of whether a child can be rehabilitated.25 Juvenile court judges are best equipped to make such transfer decisions, since they assess each case individually in a setting that allows juveniles and their attorneys to present the background and circumstances of the youth and the alleged offense.26
The Disproportionate Impact on Minority Youth
A number of studies have found that minority children are disproportionately waived into criminal court, suggesting that race and ethnicity may influence the decision to try a child as an adult. A December 1995 study by the Maryland Department of Juvenile Justice reported that 73 percent of the cases in which the juvenile court waived jurisdiction involved black youth; according to the U.S. Bureau of the Census, some 27 percent of the state's population is African-American.27 Studies in Ohio and Minnesota showed similarly disparate results. Of those cases waived to Ohio's adult courts during 1994, 62.6 percent involved black youthful defendants, whereas African-Americans make up just over 11 percent of the state's population. The disparity was even higher in Ohio's six large urban counties, in which between 63.6 percent and 81.8 percent of those transferred to adult court were black.28 In Minnesota, "minority juveniles comprised nearly nine out of ten (88 percent) of the youths whom prosecutors sought to waive" in 1992, although minorities represent less than 7 percent of Minnesota's population.29 Similar findings, based on 1990 and 1991 data, have been reported for California, where 34.3 percent of juvenile cases waived involved African-Americans and 60.2 percent were other minorities; Florida, where 60.1 percent of those waived were black juvenile offenders; Missouri, where 70.5 percent of those waived were African-American; Pennsylvania, with black juveniles making up 55.6 percent of juvenile cases waived to adult court; and South Carolina, where African-American juveniles made up 85.7 percent of all waivers.30
The Effect on Sentences and Crime
Lost in the rush to impose harsher sanctions on youthful offenders is whether such measures have any concrete results. "The assumption is that the policy makers believe that criminal courts will be tougher and can serve as a more effective deterrent for juvenile crime," notes the National Council of Juvenile and Family Court Judges. "This assumption is not borne out by the facts."31
The first of these assumptions is that the criminal courts are "tougher" on youth, meaning that they will hand down stiffer sentences. Analyzing the sentences received by youth in New York and New Jersey, Jeffrey Fagan observed that efforts to address adolescent crimes in the criminal courts "have been fueled by the expectation of greater accountability (more certain and proportionate punishment) and lengthier sentences in the criminal court" but that "none of these promises has been fulfilled."32 Fagan concludes that although adolescents transferred to criminal court were more likely to be convicted and to be sentenced to periods of incarceration, offenders whose cases were handled in the juvenile court were punished more swiftly. Furthermore, youth who were sentenced to incarceration received nearly identical sentence lengths regardless of whether they were tried in adult court or juvenile court.33 Similarly, a study of Texas youths tried in the criminal courts between 1981 and 1993 found that they rarely served sentences that were longer than they could have received in the juvenile courts.34
The second assumption is that treating juveniles as adults reduces crime. A study by the National Center for Initiatives and Alternatives compared Connecticut, with the highest juvenile-to-adult transfer rate in the United States, with Colorado, the state with the lowest rate of transfers of juveniles to adult courts. The youth crime rate was the same in each state. Similarly, studies of violent juvenile crime rates in Idaho, Florida, and New York found that the adoption of waiver or transferstatutes in each state did not have a deterrent effect on violent crimes.35 Fagan's study of New York and New Jersey youth concluded that "criminal court punishment was not a more effective strategy for crime control."36 In the words of Dr. Barry Krisberg, president of the National Council on Crime and Delinquency, "There is no evidence that either enhanced prosecution or stiffer penalties are preventing violent and serious youth crime."37
The findings of Fagan and others suggest, in fact, that juveniles prosecuted as adults are more likely to commit crimes in the future than their peers in the juvenile system are, leading the Association of the Bar of the City of New York's Committee on Juvenile Justice to conclude:
Prosecuting more youths in the adult system, and increasing the time they will spend in adult facilities, is resoundingly unwise. Extensive research demonstrates that teenagers who are prosecuted in the adult system are more often re-arrested and are re-arrested for more serious offenses than those teenagers who are prosecuted as juveniles. Treating juveniles as adults will not serve to reduce crime or increase community safety but may actually have the opposite effect.38
In short, the transfer of youth to adult courts falls short of meeting either promise. Prosecuting adolescents as adults does not ensure lengthier prison sentences for those who receive time, nor does it measurably reduce crime.
The Consequences of Being Tried as an Adult
Once transferred to adult court, the most immediate consequence for many children-even those ultimately acquitted of the charges against them-is detention in adult jails while they await trial. Whether or not they are ultimately found innocent, many of these children face the prospect of spending six months to a year or more, a significant portion of their formative adolescent years, behind bars. "Being charged as an adult, it can take half your life away," said Eddie L., a seventeen-year-old in the Prince George's County Correctional Center.39 (In this report, the names of all youth have been changed to protect their privacy.)
In Baltimore, prosecutors are not involved in the initial charging of defendants, contrary to the practice in the majority of U.S. states. Instead, the task of preparing the charges falls to the police, whose decision may go unreviewed for up to one month. According to a report released in December 1998 by the Criminal Courts Technical Assistance Project, Baltimore police often charge defendants with crimes more serious than the evidence supports-charges that are often dropped when the defendants go to trial.40
These practices come at a time when Baltimore's courts are increasingly backlogged. A Baltimore Sun investigation found in February 1998 that 150 adult inmates at the Baltimore City Detention Center had been held for more than one year without a trial; an official count taken at the end of June 1997 found that 700 inmates were in the detention center for six months or more without a trial.41 That same month, state prosecutors dropped charges against a rape suspect because they had lost contact with the victim in the nearly two years since the suspect's arrest, and a circuit court judge dismissed charges against another inmate who had beenheld for more than sixteen months with no trial.42 Juveniles held in Maryland's jails face the prospect of six months to a year or more in detention before their cases come to trial.
OJJDP notes that such delays "should be viewed from the perspective of an adolescent offender. Professional standards suggest that even the longest case should be processed within 90 days. Yet, a 90-day process means that a 14-year-old offender will wait the equivalent of a summer vacation for services or sanctions."43 Juvenile law experts and developmental psychologists concur that children's cases must be resolved rapidly if any sanctions imposed are to serve a meaningful rehabilitative purpose.44
If found guilty, children tried as adults may be subjected to mandatory minimum sentences, "three-strikes" laws, and "truth-in-sentencing" laws, provisions which are intended to increase the prison terms imposed on convicted offenders and reduce their eligibility for parole.45 In fourteen states, juvenileoffenders charged as adults are among those who are barred for life from voting.46 In many cases, they will emerge without a high school diploma. All "will carry forever the stamp of a convicted felon, making it difficult to find employment."47
International standards recognize that children, a particularly vulnerable group, are entitled to special care and protection because they are still developing physically, mentally, and emotionally.48 With this in mind, international human rights documents strongly encourage states to develop specialized laws, procedures, authorities, and institutions for handling the cases of children in conflict with the law.49
Whether or not they have established juvenile courts, states parties to human rights treaties are obligated to afford children the basic guarantees of a fair trial, including the right to be presumed innocent until proven guilty, to be informed promptly and directly of the charges against them, to have legal or other appropriate assistance in the preparation of their defense, to have the matter determined without delay by a competent, independent, and impartial authority, not to be compelled to give testimony or to confess guilt, to have adverse witnesses examined, and to obtain the participation and examination of witnesses on theirown behalf. If found to have infringed the penal law, children must be afforded the right to have the adverse decision reviewed by a higher tribunal.50
In addition to these basic due process guarantees, children in the justice system benefit from additional protections mandated by international standards. In particular, states are required to offer a range of alternatives to institutionalization. The imprisonment of a child should always be a measure of last resort and for the shortest appropriate period of time.51
Human Rights Watch believes that, interpreting these standards in practical terms, there should be a strong presumption in favor of adjudicating children's cases in the juvenile justice system. A decision to transfer a case from the juvenile justice system to the ordinary criminal courts should be limited to extraordinarily severe cases. Such a decision should be made by a judge rather than a prosecutor. The judge should consider the nature and the seriousness of the alleged offense, the age and history of the child, and his or her amenability to treatment. Transfers to the criminal courts should not be mandatory under law and should not be made in an arbitrary or in a discriminatory manner. In accordance with international standards, the decision of the judge should be subject to review by a higher tribunal; the procedures for the review of transfer decisions by a higher tribunal should protect the child's right to a fair trial without undue delay in adjudication and without deprivation of liberty beyond the shortest appropriate period of time.
4 Council on Crime in America, The State of Violent Crime in America: A First Report of the Council on Crime in America (Washington, D.C.: New Citizenship Project, 1996).
5 House Committee on Economic and Educational Opportunities, Subcommittee on Early Childhood, Youth and Families, Hearings on the Juvenile Justice and Delinquency Prevention Act, Serial No. 104-68, 104th Cong., 2d sess., 1996, p. 90 (statement of Rep. Bill McCollum, chairman, Subcommittee on Crime, House Judiciary Committee). Similarly, James Q. Wilson predicted that the first decade of the next century will see "30,000 more young muggers, killers, and thieves than we have now. Get ready." James Q. Wilson, "Crime and Public Policy," in Crime, ed. James Q. Wilson and Joan Petersilia (San Francisco: Institute for Contemporary Studies Press, 1995), p. 507. John DiIulio, a Princeton professor who coined the term "superpredator," declared in 1996: "By the year 2010, there will be approximately 270,000 more juvenile super-predators on the streets than there were in 1990." John DiIulio, How to Stop the Coming Crime Wave (New York: Manhattan Institute, 1996), p. 1. And James Alan Fox, a Northeastern University academic, forecasted a "blood bath" from juvenile homicide involvement in 2005. James A. Fox, Trends in Juvenile Violence: A Report to the United States Attorney General on Current and Future Rates of Juvenile Offending (Boston: Northeastern University Press, 1996).
6 See U.S. Department of Justice, Federal Bureau of Investigation, Uniform Crime Reports for the United States 1997 (Washington, D.C.: U.S. Government Printing Office, 1998), p. 228. See also Howard N. Snyder, Juvenile Arrests 1997 (Washington, D.C.: OJJDP, December 1998), p. 1. Juvenile crime arrest rates declined each year during this five-year period. From 1994 to 1995, juvenile arrests nationwide for violent crimes declined 3 percent. Howard N. Snyder, Juvenile Arrests 1995 (Washington, D.C.: OJJDP, February 1997), p. 1. From 1995 to 1996, arrests of juveniles under eighteen years of age for violent crimes decreased 5.8 percent. For those under fifteen years of age, arrests for violent crimes decreased 7.2 percent for the same period. U.S. Department of Justice, Federal Bureau of Investigation, Uniform Crime Reports: Crime in the United States for 1995 and 1996 (Washington, D.C.: U.S. Government Printing Office, 1996), p. 222.
7 Jacques Steinberg, "Storm Warning: The Coming Crime Wave Is Washed Up," The New York Times, January 3, 1999.
8 Franklin E. Zimring, American Youth Violence (New York: Oxford University Press, 1988), p. 18. Further, OJJDP notes that arrest figures overestimate the extent to which juveniles are involved in violent crimes because they are based on the assumption that "each of these arrests involved a different juvenile (i.e., if each juvenile arrested in 1995 for a Violent Crime Index Offense were arrested only once that year-which is very unlikely)." Snyder, Juvenile Arrests 1995, p. 4.
9 Zimring, American Youth Violence, pp. 38-45 (analyzing FBI data from 1980 to 1995 to determine trends in arrest rates for aggravated assault). See generally U.S. Department of Justice, FBI, Crime in the United States, (Washington, D.C.: U.S. Government Printing Office, annual volumes for 1980-1995). Zimring explains:
How assaults are counted and classified is essentially a matter of police discretion. Changing police standards can have a huge impact on statistical trends. For the period since 1980, there is significant circumstantial evidence from many sources that changing police thresholds for when assault should be recorded and when the report should be for aggravated assault are the reason for most of the growth in arrest rates.
Zimring, American Youth Violence, p. 39. See also Franklin E. Zimring, "American Youth Violence: Issues and Trends," in Crime and Justice: An Annual Review of Research, ed. Norval Morris and Michael Tonry (Chicago: University of Chicago Press, 1979).
10 Eric Lotke and Vincent Shiraldi, An Analysis of Juvenile Homicides: Where They Occur and the Effectiveness of Adult Court Intervention (Washington, D.C.: National Center on Institutions and Alternatives and Center on Juvenile and Criminal Justice, 1996), p. 4.
11 Mike A. Males, "Five Myths, and Why Adults Believe They Are True," The New York Times,April 29, 1998, p. G9.
12 Zimring, American Youth Violence, p. 63.
13 Hearings on the Juvenile Justice and Delinquency Prevention Act, p. 89.
14 Zimring, American Youth Violence, p. 63.
15 Ibid. Zimring analyzed census statistics to determine trends in the youth population and then compared youth population trends with the arrest rate trends he identified from FBI data. See ibid., pp. 49-65. See generally U.S. Department of Commerce, Bureau of the Census, Current Population Reports: Estimates of the Population of the United States by Age, Sex, and Race (Washington, D.C.: U.S. Government Printing Office, annual volumes for 1960-1995); U.S. Department of Justice, FBI, Crime in the United States, (Washington, D.C.: U.S. Government Printing Office, annual volumes for 1980-1995). Zimring concludes that the "only proper inference to be drawn from knowing that an extra million teenagers will be present at some future time is that there will be a larger group of teenagers. . . . How many muggers or killers will be in that population is not known or predicted . . . ." Zimring, American Youth Violence, p. 63.
16 See Eric Fritsch and Craig Hemmens, "Juvenile Waiver in the United States, 1979-1995: A Comparison and Analysis of State Waiver Statutes," Juvenile and Family Court Journal, Summer 1995, p.23; Lisa A. Cintron, "Rehabilitating the Juvenile Court System: Limiting Juvenile Transfers to Adult Court," Northwestern University Law Review, vol. 90 (1996), pp. 1262-71. Another approach to dealing with serious juvenile offenders is a "blended sentencing" system, in which a youthful offender is given some combination of juvenile sanctions and adult punishment. Between 1992 and 1998, sixteen states adopted some form of blended sentencing. See Linda J. Collier, "Adult Crime, Adult Time: Outdated Juvenile Laws Thwart Justice," The Washington Post, March 9, 1998, p. C5. In Minnesota, for example, compliance with the terms of the juvenile sentence results in the release of the youth without an adult criminal record. See, for example, Pam Belluck, "Fighting Youth Crime, Some States Blend Adult and Juvenile Justice," New York Times, February 11, 1998, p. A1. For a discussion of different models of blended sentencing statutes, see OJJDP, State Responses to Serious and Violent Juvenile Crime (Washington, D.C: National Center for Juvenile Justice, 1996), pp. 11-14.
17 See Barry C. Feld, "The Juvenile Court Meets the Principle of the Offense: Legislative Changes in Juvenile Waiver Statutes," Journal of Criminal Law and Criminology, vol. 78 (1987), p. 478. The United States's first juvenile courts were established in the state of Illinois in 1899; by 1945, every U.S. jurisdiction had a juvenile court. See Charles W. Thomas and Shay Bilchik, "Prosecuting Juveniles in Criminal Courts: A Legal and Empirical Analysis," Journal of Criminal Law and Criminology, vol. 76 (1985), p. 451. For a review of the development of the juvenile justice system in the United States, see generally Sanford J. Fox, "Juvenile Justice Reform: An Historical Perspective," Stanford Law Review, vol. 22 (1970), p. 1187.
18 See generally Barry C. Feld, "The Transformation of the Juvenile Court," Minnesota Law Review, vol. 75 (1991), p. 691. Under Illinois law, for example, children charged with controlled substances violations that occur within 1,000 feet of a school or public housing property are automatically transferred into the adult system. See 705 Ill. Comp. Stat. 405/5-130(2) (West 1999).
19 See Md. Code Ann., Courts and Judicial Proceedings Article, § 3-804(e).
20 See Md. Ann. Code, Article 27, § 594A. Not all cases are eligible for transfer to the juvenile court. A child is not eligible for a transfer to the juvenile court if he or she has a prior adult criminal conviction or if he or she previously received a transfer to the juvenile court and was adjudicated delinquent. In addition, a sixteen- or seventeen-year-old accused of murder may not be transferred to the juvenile court. See ibid. § 594A(b).
21 See Md. Code Ann., Courts and Judicial Proceedings Article, § 3-817.
22 See ibid. § 3-817(d).
23 Ibid. § 3-817(c), (e).
24 See Carol J. DeFrances and Kevin J. Strom, Juveniles Prosecuted in State Criminal Courts (Washington, D.C.: Bureau of Justice Statistics, March 1997), p. 5.
25 See Mark I. Soler and others, Representing the Child Client (Matthew Bender, March 1998), para. 5.03[e]; Barry C. Feld, "The Juvenile Court Meets the Principle of the Offense: Legislative Changes in Juvenile Waiver Statutes," Journal of Criminal Law and Criminology, vol. 78 (1987), p. 499.
26 Even the use of judicial waivers is open to challenge, particularly where transfers to criminal court are not limited to the truly exceptional cases. Criminologists have noted that it is not clear that a juvenile court can accurately measure "amenability to treatment" or predict "dangerousness," and some have found that the exercise of discretion may lead to inconsistent, perhaps arbitrary transfer decisions. See Jeffrey Fagan and Elizabeth Piper Deschenes, "Determinants of Judicial Waiver Decisions for Violent Juvenile Offenders," Journal of Criminal Law and Criminology, vol. 81 (1990), p. 314 (finding inconsistencies in the application of transfer laws); Barry C. Feld, "Reference of Juvenile Offenders for Adult Prosecution: The Legislative Alternative to Asking Unanswerable Questions," Minnesota Law Review, vol. 62 (1978), pp. 529-56 (contending that juvenile court judges lack reliable clinical measures of dangerousness or amenability to rehabilitation); Barry C. Feld, "Bad Law Makes Hard Cases: Reflections on Teen-Aged Axe-Murderers, Judicial Activism, and Legislative Default," Law and Inequality Journal, vol. 8 (1990), p. 1 (concluding that standardless discretion leads to inconsistent decisions and "justice by geography").
27 See Disproportionate Minority Representation Task Force, The Disproportionate Representation of African-American Youth at Various Decision Points in the State of Maryland (Baltimore: Maryland Department of Juvenile Justice, 1995), p. 8; Population Estimates Program, Population Division, U.S. Bureau of the Census, Estimates of the Population of States by Race and Hispanic Origin: July 1, 1997 (Washington, D.C.: U.S. Bureau of the Census, 1998), p. 1 ("State Population Estimates"), available on <http://www.census.gov>.
28 See Ohio Department of Youth Services, Juveniles Transferred to Adult Court in Ohio: Calendar Year 1994 (Columbus, Ohio: Ohio Department of Youth Services, 1994), pp. 3-4; State Population Estimates, p. 1.
29 See Marcy Rasmussen Podkopacz and Barry C. Feld, "The End of the Line: An Empirical Study of Judicial Waiver," Journal of Criminal Law and Criminology, vol. 86 (1996), p. 470; State Population Estimates, p. 1.
30 See General Accounting Office, Juvenile Justice: Juveniles Processed in Criminal Court and Case Dispositions (Washington, D.C.: GAO, 1995), pp. 50-58. Minorities make up just over 20 percent of California's population, with African Americans making up just 7.4 percent of the total. In Florida, 15.4 percent of the population is black; in Missouri, 11.2percent; in Pennsylvania, 9.7 percent; and in South Carolina, African Americans represent 30 percent of the population. See State Population Estimates, p. 1.
31 National Council of Juvenile and Family Court Judges, Where We Stand: An Action Plan for Dealing with Violent Juvenile Crime (Reno, Nevada: National Council of Juvenile and Family Court Judges, n.d.), p. 2.
32 Jeffrey Fagan, "The Comparative Advantage of Juvenile Versus Criminal Court Sanctions on Recidivism Among Adolescent Felony Offenders," Law and Policy, vol. 18 (1996), p. 98.
33 Ibid., p. 100.
34 See Eric J. Fritsch, Tory J. Caeti, and Craig Hemmens, "Spare the Needle But Not the Punishment: The Incarceration of Waived Youth in Texas Prisons," Crime and Delinquency, vol. 42 (1996), p. 593.
35 See Richard Lacayo, "Teen Crime," Time, July 21, 1997, p. 28; Eric L. Jensen and Linda Metsger, "Waiver of Juveniles to Criminal Court," Idaho Law Review, vol. 31 (1994), p. 174; Donna M. Bishop and others, "The Transfer of Juveniles to Criminal Court: Does It Make a Difference?," Crime and Delinquency, vol. 42 (1996), p.183; Simon I. Singer and David McDowell, "Criminalizing Delinquency: The Deterrent Effects of the New York Juvenile Offender Law," Law and Society Review, vol. 22 (1988), p. 521. The authors of the Florida study concluded:
Overall, the results suggest that transfer in Florida has had little deterrent value. Nor has it produced any incapacitative benefits that enhance public safety. Although incarcerated youth were more likely to be incarcerated and to be incarcerated for longer periods than those retained in the juvenile justice system, they quickly reoffended at a higher rate than the nontransferred controls, thereby negating any incapacitative benefits that might have been achieved in the short run.
Bishop and others, "Does It Make a Difference?," p. 183.
36 Fagan, "Court Sanctions," p. 100.
37 Mark Dowie, "When Kids Commit Adult Crimes, Some Say They Should Do Adult Time, California Lawyer, vol. 13 (1993), p. 57.
38 Committee on Juvenile Justice, "Report on Governor Pataki's Juvenile Justice Reform Proposals," The Record of the Association of the Bar of the City of New York, vol. 52 (May 1997), p. 451.
39 Human Rights Watch interview, P.G. County Correctional Center, July 23, 1998.
40 The Baltimore Sun reported in December 1998 that prosecutors declined to try 60 percent of the misdemeanors charged by city police in 1997. In May 1998, 23 percent of the criminal cases on the docket of the circuit court were never prosecuted, either for lack of evidence or because charges were dropped as part of plea bargains. The circuit court tries felony cases and misdemeanor jury trials. See Caitlin Francke, "Proposal Aims to Unclog Courts; City Prosecutors, Not Police Would Decide on Charges," The Baltimore Sun, December 10, 1998, p. 1A.
41 See Ivan Penn, "150 City Suspects Jailed over a Year Waiting Trial; Rape Defendant Freed in Part Because Case Is Nearly 2 Years Old," The Baltimore Sun, February 3, 1998, p. 1A.
42 See Ivan Penn, "Suspect in Jail Nearly 2 Years Sees His Rape Charges Dropped; State Cited Length of Case, Victim's Disappearance," The Baltimore Sun, February 3, 1998, p. 6A; Brenda J. Buote, "Charges Against Prisoner Dismissed; Detention Center Inmate Had Been Held 16 Months," The Baltimore Sun, February 19, 1998, p. 3B. A third inmate was reportedly held for almost twenty months before he accepted a guilty plea. See Ivan Penn, "Inmate Jailed Without Trial for 20 Months Pleads Guilty; He Admits to Burglary in Plea Agreement," The Baltimore Sun, February 6, 1998, p. 2B.
43 U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention, Delays in Juvenile Court Processing of Delinquency Cases (Washington, D.C.: OJJDP, 1997), p. 1.
44 Delays in bringing cases to trial do not only hamper efforts at rehabilitation. Where criminal proceedings are so protracted that charges must be dropped or dismissed, these delays hurt the victims of crimes by denying them redress.
45 See, for example, Michael Tony, Sentencing Matters (Oxford University Press: New York, 1995) (mandatory minimum sentences); Human Rights Watch, "Cruel and Unusual: Disproportionate Sentences for New York Drug Offenders," A Human Rights Watch Short Report, vol. 9, no. 2, March 1997 (analyzing the impact of mandatory minimum sentences for drug offenders in New York State); California Department of Corrections, "Count of Prisoners Sentenced for Third and Second Strike Cases," June 30, 1998 ("three strikes" laws); Kevin R. Reitz, "Federal Influence in State Cases: Sentencing, Prosecution, and Procedure-The Federal Role in Sentencing Law and Policy," Annals of the American Academy of Political and Social Science, January 1996, p. 117 (describing the "truth-in-sentencing" provision of the federal Violent Crime Control and Law Enforcement Act of 1994, which requires states to adopt measures to ensure that violent offenders "shall not serve less than 85 percent of the sentence imposed").
46 Maryland permanently disenfranchises those convicted of a second felony. See Human Rights Watch and The Sentencing Project, Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States (New York: Human Rights Watch & The Sentencing Project, October 1998), pp. 4-5.
47 Alex Kotlowitz, "Their Crimes Don't Make Them Adults," The New York Times Magazine, February 13, 1994, p. 41.
48 See, for example, Universal Declaration of Human Rights, Article 25(2), G.A. Res. 217A(III), U.N. Doc. A/810, p. 71 (1948). Similarly, the United States Supreme Court has recognized that
Adolescents, particularly in the early middle and teen years, are more vulnerable, more impulsive, and less self-disciplined than adults. Crimes committed by youths may be just as harmful to victims as those committed by older persons, but they deserve less punishment because adolescents may have less capacity to control their conduct and to think in long-range terms than adults.
Eddings v. Oklahoma, 455 U.S. 104, 115 n.11 (1982).
49 Article 40(3) of the Convention on the Rights of the Child calls upon states "to promote the establishment of laws, procedures, authorities, and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law." See also U.N. Standard Minimum Rules for the Administration of Juvenile Justice, Article 1.4, G.A. Res. 40/33, 40 U.N. GAOR Supp. (No. 53), p. 207, U.N. Doc. A/40/53 (1985).
50 See International Covenant on Civil and Political Rights, Article 14(5), opened for signature December 19, 1966, 999 U.N.T.S. 171 (entered into force March 23, 1976); Convention on the Rights of the Child, Article 40(b).
51 See Convention on the Rights of the Child, Articles 40(4) and 37(b). See also U.N. Standard Minimum Rules for the Administration of Juvenile Justice, Articles 17-19.