Paneez Oliai is a third-year student in the College, where she majors in
History and Psychology with a minor in Government. She is currently a managing
editor for the Georgetown University Undergraduate Law Review.
With the recent push in Maryland to end mandatory direct file, the charging of juveniles as adults is as relevant of a debate as ever. As a matter of fact, the issue has been hotly debated across the nation: in 2019, California lawmakers passed a state law requiring that youths under the age of 16 be tried in juvenile court. The legislation was challenged by prosecutors across the state, but the law remained. The California Supreme Court unanimously decided in O.G. v. Superior Court to uphold the policy and its limits on the transfer of juvenile cases to adult courts. Prosecutors had alleged that the ability to try juveniles charged with certain crimes as adults serves to deter crime, appropriately punish serious violations of the law, and bring justice to victims. Yet a number of comprehensive, nation-wide reports illustrate otherwise.
Juveniles are typically transferred to adult courts through one of three methods: judicial waiver, mandatory direct file, and prosecutorial direct file. A judicial waiver occurs when juvenile court judges decide to transfer the child to adult court following their waiver or fitness hearing. Mandatory direct file, on the other hand, is implemented when a youth is automatically transferred to adult court due to the nature of the crime being discussed, while a prosecutorial direct file allows prosecuting attorneys to file the case in adult court directly, without the approval of a judge. Reports such as the 2012 Bulletin of the U.S. Department of Justice’s Office of Juvenile Justice and Delinquency’s Prevention, however, have found issues with all three methods of juvenile transfer to adult court.
Policies such as mandatory direct file, for instance, ignore the context and idiosyncratic circumstances of individual cases; instead of offering flexible guidelines under which juvenile cases may be transferred to adult courts, the system relies on a blanket heuristic. Decisions like these thus become cut-and-dry, devoid of nuance. Direct file thus makes it impossible for courts to receive the full picture, an effect that becomes particularly dangerous when the defendants are children of color. With the historic and systemic deprivation of communities of color from safety, vital resources, and social supports, it is unsurprising that the developmental environment of each child becomes vital to their case. Yet when policies such as direct file are implemented, this valuable context is effectively ignored, making it more likely for children of color to be transferred to adult courts, convicted, and given harsher sentences.
The alternative, prosecutorial direct file, presents an equally unattractive reality. Unfortunately, prosecutorial direct file policies include few if any standards, guidelines, or even recommendations for considerations. This vagueness surrounding prosecutorial discretion laws precludes defendants from testing the decision, giving immense and unquestionable power to prosecutors to undermine the juvenile justice system.
Critically, all three systems remain problematic even when issues regarding the method of transfer are resolved; when the very consequences of transferring youths are negative, altering the methods is hardly helpful. In fact, reports such as those discussed above have demonstrated that the focus on penalizing youth is more vindictive than rehabilitative. When juveniles are denied the ability to be tried in a system constructed with their rehabilitation and unique needs in mind, the very purpose of juvenile court systems is again undermined. Adult courts focus on the question of objective guilt versus innocence, lacking the consideration of environmental factors and contexts that juvenile justice systems emphasize.
This context, however, matters far more for children than it does for adults. At such a critical point in their physical and psychological development, environmental influences play a major role in shaping the decisions and behavior of children. This makes it difficult for prosecutors to allege that a child utilizes the same agency and decision-making processes as an adult when they commit a crime. This very lack of agency, as a matter of fact, is one of the guiding principles underlying the many protective laws regarding juveniles. In other words, prosecutors simply cannot have it both ways; either children are independent and self-aware enough to make a number of decisions that they are currently restricted from, or they should be regarded with greater consideration of their environmental factors.
Again, this lack of context is particularly harmful for children of color—just as in the issue of direct file, the socioeconomic circumstances of children of color leave them less protected against such destructive policies. Children of color are more likely to experience underserved neighborhoods, difficulty in retaining private counsel, and increased surveillance and violence at the hands of police. This makes youth of color vastly more likely to be transferred to adult courts, where they receive a disproportionately large amount of convictions and correspondingly inequitable sentences. By recognizing the complex relationship between the behavior of juveniles and their worlds, juvenile justice systems serve to correct environmental issues that affect children of color in particular, repairing the harmful effects of systemic inequalities.
Adult courts, on the other hand, leave little room for growth. When an adult enters the justice system, much of their development has already been completed. Yet a child tried and sentenced through adult systems is effectively frozen in their development. They are given no support in mending harmful behaviors, or any hope for reintegration into communities and families where they might have been positive forces. Disturbingly, the trying of youths in adult courts is ineffective even in achieving the goal of deterrence: several studies have revealed that juveniles tried and sentenced in adult courts had higher recidivism rates than those charged with similar offenses in juvenile courts. Clearly, the transfer of juveniles to adult courts creates positive feedback loops in which children fall behind in their development, are given no opportunity to heal, and are repeatedly returned to an ineffective justice system. The focus when it comes to juveniles thus cannot be punishment. The debate regarding the trying of juveniles as adults demands that we reevaluate the goals and priorities of our justice system. It is evident that the cost to society from the neglect of restorative justice is far too much for both our systems of justice and our marginalized communities to bear. Fortunately, the situation is not entirely hopeless: more and more state courts are beginning to reevaluate their stances on harmful judicial practices like mandatory direct file, securing the future of juvenile justice one policy at a time.
 Brian Witte, Supporters of Juvenile Justice Reform Hopeful in Maryland, US NEWS (2021), https://www.usnews.com/news/best-states/maryland/articles/2021-12-21/supporters-of-juvenile-justice-reform-hopeful-in-maryland.
 O.G. v. Superior Court, 11 Cal.5th 82, 92 (2021)
 Celia Harris et al., Juvenile InJustice: Charging Youth as Adults is Ineffective, Biased, and Harmful Human Impact Partners, HUMAN IMPACT (Feb., 2017), https://humanimpact.org/hipprojects/juvenile-injustice-charging-youth-as-adults-is-ineffective-biased-and-harmful.
 Id. at 6.
 Edward P. Mulvey & Carol A. Schubert, Transfer of Juveniles to Adult Court: Effects of a Broad Policy in One Court, U.S. Department of Justice Office of Juvenile Justice and Delinquency Prevention 1–20 (2012).
 Patrick Griffin et al., Trying Juveniles as Adults: An Analysis of State Transfer Laws and Reporting, U.S. Department of Justice Office of Juvenile Justice and Delinquency Prevention 1–28 (2011).
 Harris et al., Juvenile InJustice, 14.
 Id. At 7-8.
 Craig A. Mason et al., Impacting Re-Arrest Rates Among Youth Sentenced in Adult Court: An Epidemiological Examination of the Juvenile Sentencing Advocacy Project, 32 Journal of Clinical Child & Adolescent Psychology 205–214 (2003).Project; 2001. http://ncfy.acf.hhs.gov/library/2001/re-arrest-rates-among-youth-sentenced-adult-court.; Richard E. Redding, Juvenile Transfer Laws: An Effective Deterrent to Delinquency?, Juvenile Justice Bulletin 1–12 (2008).