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Kristina Kersey

Abstract

The confidentiality of the juvenile court, while laudable in protection of the children charged, often means that people, in general, have little understanding of the inner workings of the court. One of the opaquest practices in juvenile court is how, when, and under which circumstances youth are prosecuted as adults. The cases that do reach the headlines are the most salacious, which leads to a confirmation bias on both the need and the appropriateness of the practice of transfer.

Many scholars have discussed the undeniable impact of adolescent development research on juvenile legal jurisprudence and a general reimaging of diminished culpability for youth with criminal offending behavior. The United States Supreme Court, through Roper v. Simmons and its progeny, has declared that youth under age eighteen will no longer face the death penalty or mandatory life in prison sentences, meaning that more individuals who were sentenced in criminal court as children to lengthy prison sentences and grew up in prison will return, decades later, to a changed world. This adoption of adolescent development research by the Supreme Court cases which addressed cruel and unusual punishment for youth has led to state legislative changes, driving campaigns around raising the mini-mum age of prosecution, against the use of solitary confinement and indiscriminate shackling, and amending procedures in police interrogation. This research has led to isolated changes in transfer practice, yet little attention has been dedicated to considering whether youth should be tried as adults full stop.

Advocates that ground transfer abolition conversations in adolescent development have earned isolated and hard-fought victories on aspects such as mini-mum age, elimination of mandatory transfer, or enhanced due process protections in the process of transfer decisions. However, high profile cases involving youth offending behavior or perceived upticks in crime frequently place these victories in jeopardy of retrenchment to more permissive transfer practices. Regardless of the role that adolescent development should play in significantly limiting or abolishing transfer, no state seems poised currently to end the practice entirely. And indeed, most scholars assume that some form of transfer must, should, or will continue to exist, likely because it always has existed.

While transfer is generally categorized as a jurisdictional decision, between juvenile court prosecution and adult criminal court prosecution, this Article con-tributes to the dialogue in exploring the ways in which transfer operates more as a form of punishment. Such a discussion on transfer as a form of punishment invites a conversation about reform or abolition with those individuals currently unpersuaded by adolescent development science alone. By exploring the more curious aspects of the lack penological support for transfer, not only in the practice, but in the decision of selection for children to transfer, this discussion acts as a bridge to transfer reform or abolition that adolescent development on its own has been unable to successfully traverse.

The decision to try a child as an adult acts as a punishment—it enhances exposure to incarceration, brings additional collateral consequences, and removes children from a system which purports to be for their protection, to a system focused on their punishment. It has an origin story and expansion history specifically focused on punishment. And while there has been expanded focus by the United States Supreme Court on adolescent development research, its focus retroactively, only after youth have grown into adults while incarcerated, is often too little, too late. This Article’s exploration of the transfer determination as punishment offers intermediate novel, concrete, and immediate reforms that would align theory with practice and invite a more nuanced exploration about the “need” for transfer.

Transfer mirrors the death penalty in the seemingly polarizing nature of discussions between those for and against the practice. And while previously explored for the death penalty, a moratorium has never been previously explored for trans-fer. However, what transfer ultimately needs is a time out, a moratorium, to study the practice, recognize system failures, and explore abolition.

We don’t advocate that immature adults be prosecuted as children. Time has come to re-examine what justice means for young people who face prosecution as adults and to question the legitimacy of trying children as adults.

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