Role of Waiver in the Juvenile Court - Questions of Philosophy and Function (From Major Issues in Juvenile Justice Information and Training Readings in Public Policy, P 207-226, 1981, John C Hall et al, ed. - See NCJ-77318)

• NCJ Number: 77321
• Author(s): C H Whitebread; R Batey
• Date Published: 1981
• Length: 20 pages
• Sale Source: Academy for Contemporary Problems
• Language: English
• Country: United States of America

Annotation

This examination of the philosophy underlying waiver of juvenile court jurisdiction concludes that a philosophy of waiver should be based mainly on the prevention theory of punishment, although the rehabilitative theory should be given secondary emphasis.

Abstract

The initiation and evolution of waiver of jurisdiction parallels the history of the juvenile court. The 1966 Kent decision began the process of formalizing waiver procedure. The 1967 Gault decision extended procedural due process rights to juvenile cases involving potential losses of liberty. The procedural holdings in Kent and Gault required almost every American legislature to redraft its juvenile court statute. Since most States included waiver guidelines in their statutes, one result of the reform initiated by Kent has been the virtual eradication of totally discretionary judicial waiver. Recommendations from the Juvenile Justice Standards Project are likely to have an additional influence on waiver of jurisdiction. Since the waiver process is a punishment-inflicting justice system, judges' decisions on waiver must be derived from the philosophy underlying waiver. The six theoretical bases for punishment within the justice system are retribution, deterrence, education, prevention, restraint, and rehabilitation. None of the six theories acts in isolation, in either the criminal, juvenile, or waiver context. Prevention should be the primary basis for waiver decisionmaking, in that the decisionmaker should consider the juvenile's past history of misconduct and past responses to the juvenile court in determining the punishment necessary to cause the juvenile to resist the desire to misbehave. If the need is for greater punishment than is available in the juvenile court, transfer to criminal court should occur. Rehabilitation also deserves emphasis, because the benign policy of rehabilitation is a more appropriate response to juvenile misconduct than is the pursuit of retribution or deterrence. Footnotes are provided.