prosecuted as an adult, the criminal court is required to transfer the juvenile to the juvenile court. If, however, the juvenile court does not have jurisdiction over certain juveniles, they will be treated as adults. For example, many juvenile codes exclude traffic offenders from the juvenile court's jurisdiction, or the definitions may not include certain juveniles as in Colorado, where the definition of delinquent child does not include those over 13, charged with a serious offense; or in Mississippi where delinquent act does not include offenses punishable by life imprisonment or death. It is important therefore to scrutinize the definitional provisions of the codes to discover who is being excluded from the protective wing of the juvenile court. Many juveniles may be in jails, commingling with adults, because their alleged offenses are not within the jurisdiction of the juvenile court. Any protective provision of the code prohibiting the jailing of children may be meaningless for those juveniles not included within the jurisdiction of the juvenile court.

In addition to the exclusion of traffic and other offenses, there may be another system whereby the juvenile court cannot prevent certain juveniles from being automatically treated as adults and processed through the adult criminal court. For example, in Arkansas, the prosecutor decides which court to file charges in. In the District of Columbia, Maryland, and Nevada, the criminal court is required to transfer unless a capital or life term offense is involved and then it must retain jurisdiction. In both Georgia and Pennsylvania, the criminal court is required to transfer unless a capital offense is involved and then it may retain jurisdiction.

In most states, the juvenile court is not required to transfer any juveniles within its jurisdiction to the criminal court. Of those states which require transfer, Delaware, North Carolina, Pennsylvania, and the Virgin Islands require transfer when a capital and/or life term offense is involved. As an example of a variation of the mandatory transfer provision, Florida law provides that a child of any age charged with a violation of Florida law punishable by death or by life imprisonment must be subject to the jurisdiction of the juvenile court unless and until an indictment on such charge is returned by the grand jury. When an indictment is returned, the petition for delinquency, if any, must be dismissed and the child must be tried and handled in every respect as if s/he were an adult. Of these states with mandatory transfer provisions, there may be a minimum age requirement as, for example, in the Virgin Islands where the juvenile must be 15 for mandatory waiver. There may be other requirements also as in Delaware, where the juvenile court is required to transfer when a capital or life term offense is involved, and where the juvenile is 16 and not amenable to the rehabilitative juvenile process.

C. Waiver Hearing and Grounds for Transfer
1.
Waiver Hearing

The United States Supreme Court decision, Kent, established the need for a waiver hearing before a juvenile can be waived to the adult criminal For the juvenile, the waiver hearing is of the utmost importance. It may represent his or her only opportunity to remain within the

juvenile justice system. It may be the last chance a juvenile has to receive treatment and rehabilitation.

In most states, a waiver hearing is statutorily
guaranteed. However, in several states* the
requirement of a hearing is either circumvented
because for example, the prosecutor may bring
charges initially in the adult court or the law
is not clear or waiver is not provided for and/
or it is provided for by the rules of court.
(Provision by rules of court may have the same
stature in legality as do the statutes, as for
example, in Arizona. As provided by court rules
in Arizona, at any time prior to an adjudication
hearing the juvenile probation officer or the
county attorney may request a transfer hearing
to determine if the child should be tried in the
criminal court as an adult.)6 In addition, al-
though a hearing may not be provided for in
these states, there may be a provision for a
"full investigation," as in Guam, which pursuant
to case law includes a mandatory hearing. Or,
the juvenile court may have no authority to
waive a juvenile to the criminal court as in
New York and Vermont. In American Samoa, there
is no provision for transfer but the statute
provides that:

An offender 16 years of age or over
may...be treated in all respects as
an adult if, in the opinion of the
court, his physical and mental

maturity so justifies.

(The Trust Territories have a similar provision.) In Nebraska, where the prosecutor chooses the forum initially, a hearing is guaranteed only on the juvenile's motion to be transferred from the adult criminal court to the juvenile court. *American Samoa, Arizona, Arkansas, Florida (for

Of those states providing for waiver, most also provide grounds upon which the juvenile court bases its decision whether or not to transfer the case. The most common criteria include: (1) lack of rehabilitation or suitable facilities or services for the juvenile charged; (2) the ability of the juvenile justice system to rehabilitate the child; (3) the best interests of the child and the public; (4) the seriousness of the offense; (5) protection of the public; (6) whether the juvenile probably committed the offense; (7) the juvenile's record and history (and probable cause of behavior), his or her physical and mental maturity, demeanor, and age; and (8) whether the juvenile is commitable to a mental institution or is retarded or insane. In at least one state, Missouri, the decision is based on the judge's personal discretion only.

D. Prosecutorial Request of Transfer

Central to the waiver issue is not only whether a juvenile has an impartial hearing and a transfer decision based on objective, specific criteria, but also, who requests the transfer. Does one individual--the prosecutor who may

be motivated by racial, political, or other reasons--have sole authority in initiating waiver?

In over 80 percent of the states statutorily providing for transfer, the prosecutorial request of transfer is not required. In Alabama, Colorado, the District of Columbia, Indiana, Maine, Michigan, Montana, Texas, and Virginia, the prosecutor is required to request transfer otherwise it is not an option. The situation is even more serious, because the decision is more arbitrary and unchecked by the juvenile court, in Arkansas and Nebraska where the prosecutor chooses the forum and there is no provision for waiver. (Note that in Arkansas, the child must be over the age of 14 for the prosecutor to choose to file charges in the criminal court.) In Wyoming, while prosecutors are not required to request transfer, they do have the opportunity to choose the forum. In West Virginia and Florida, the prosecutor must request waiver unless the juvenile makes the demand. In Guam, for certain offenses, a minor is automatically certified for prosecution as an adult unless s/he petitions for treatment as a juvenile.

probation may be more easily obtained in the criminal system where the 9 accused has a right to jury trial.

Further, if the state has the power to determine whether or not a juvenile should be treated as an adult, surely the individual in a democratic society should have a similar choice.

However, only 16 states give the juvenile offender the right to be tried as an adult for all or specific offenses, the right to motion for transfer, or some other system whereby the juvenile may choose not to be under the juvenile court's jurisdiction (for example, in Alabama, a person charged with a crime committed in his or her minority may be tried as a youthful offender by choice rather than as an adult).*

*Alabama, Florida, Guam, Idaho, Illinois, Iowa, Louisiana, Maryland, New Hampshire, New Jersey, North Dakota, Pennsylvania, Virginia, Washington, West Virginia, Wisconsin.

The age at which a juvenile may request transfer or otherwise choose to be treated as an adult or to not fall within the jurisdiction of the juvenile court ranges from 13 in Illinois to 14 in Iowa, New Jersey, and Pennsylvania

to 15 in Idaho, Louisiana, and Virginia to 16 in West Virginia and Wisconsin, and 17 in New Hampshire and North Dakota. No age is specified in Guam and Washington.

3

Maximum Age Of Juvenile Court Jurisdiction

The statutes of each state and territory provide for a maximum age for jurisdiction of the juvenile court ". ...below which children are deemed subject to the ameliorative processes of the court. Indeed, 'child' is generally defined as a person under the maximum age establishing the court's jurisdiction."10 For example, in Connecticut the first section of the juvenile code ("Definitions") provides that:

"Child" means any person under sixteen
years of age;

"youth" means any person sixteen to

eighteen years of age...

11

The second section ("Juvenile matters defined, authority of court") provides:

Juvenile matters include all proceed-
ings concerning uncared-for, neglected
or dependent children and youth and
delinquent children within this
state...12 (emphasis added)

The maximum age provided for is somewhat misleading, however, unless one also considers whether in the case of juvenile offenders the maximum age listed refers to the age at apprehension or detention or the age at the time of the alleged offense. For example, a juvenile may have been under 18 (maximum age) at the time of the offense but 19 by the time s/he is charged; many states provide that these juveniles are still within the jurisdiction of the juvenile court. For example, Alabama's definition of "child" means "an individual under the age of 18 or under 19 years of age and who committed the act of delinquency with which he is charged before reaching the age of 18 years.13

Table 2 indicates the maximum age for all children in each state and territory and it indicates for juvenile offenders whether the maximum age refers to the juvenile's age at the time of apprehension or when the offense was alleged to have been committed. Where there is no specific statutory provision, age at apprehension has been assumed.

As Table 2 indicates, in most states, the maximum age is 18 for all groups of children and in the majority of states the maximum age for a juvenile offender is determined by the age at the time the alleged offense was committed.

Only one state, New York, continues to prescribe different jurisdictional ages for female (18) and male (16) "persons in need of supervision." In the past, when other states distinguished similarly between males and females, the statutes were successfully challenged on equal protection grounds. 14