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Psychologists’ Roles in By Brett Trowbridge,
Ph.D., J.D. Mental health experts routinely testify at hearings to determine whether to transfer juveniles from juvenile court to superior court or adult court. In Washington these hearings are usually referred to as “decline” hearings, because the juvenile court must decide whether to “decline” the case and send it to superior court. In other states these hearings are called “waiver”, “transfer”, or “bindover” hearings. Trial as an adult has serious consequences for juveniles, as juvenile proceedings are confidential but adult proceedings are not, a juvenile adjudication is not a “conviction” and thus can usually not be used against the juvenile in the future (except in some cases for criminal history), and in Washington juveniles can only be committed to juvenile institutions until they have reached their twenty-first birthday. Adult convictions result in loss of voting privileges, loss of the right to serve in the military, loss of the right to own a firearm, and the requirement to report the conviction on employment applications. Automatic Decline There is currently a national trend to amend statutes
to send more juveniles to adult court, especially violent juvenile offenders,
and nearly every state has amended its statutes to make transfer to adult
court more common. Grisso, T. (1996). Society’s retributive responses to juvenile
violence: a developmental perspective. 20 Law and Human Behavior 229.
The most common way of doing so has been to legislate that certain offenses,
alleged to have been committed by juveniles older than certain ages are automatically
“declined” and sent “automatically” to adult court without a hearing. In Washington,
the juvenile court has traditionally had jurisdiction over any child under
the age of eighteen, but RCW 13.04 was modified first in 1994 and again in
1997 through legislation that set forth that for juveniles age sixteen or
older who are charged with certain offenses and/or have certain criminal histories,
“automatic” adult jurisdiction applies, and prosecutors file such cases directly
in Superior Court, RCW 13.04.030. “Automatic” decline does not violate the
eighth amendment prohibition against “cruel and unusual punishments”, does
not violate either procedural or substantive due process and does not violate
the equal protection clauses of either the
The list of “serious offenses” includes first degree murder, second degree murder, first degree manslaughter, homicide by abuse, first degree kidnap, first degree assault, first degree rape, and first degree assault of child, as well as attempting, soliciting, or conspiring to commit any of those offenses. Juveniles age sixteen or older are also “automatically” under adult jurisdiction if they are alleged to have committed first degree robbery, first degree rape of a child, or drive-by shooting. Furthermore, if age sixteen or older, the juvenile will be subject to “automatic” adult jurisdiction if he is alleged to have committed a “violent offense”, and has a record of one or more prior serious violent offenses, or has a record of two or more prior violent offenses, or has a record of three or more of any combination of the following, which must have been committed after the juvenile’s thirteenth birthday and prosecuted separately: any class A felony, any class B felony, vehicular assault, or second degree manslaughter. “Violent offenses” include any class A felony (or attempt, solicitation or conspiracy to commit any class A felony), second degree manslaughter, indecent liberties by forcible compulsion, second degree kidnap, second degree arson, second degree assault, second degree assault of a child, first degree extortion, second degree robbery, vehicular assault, or vehicular homicide (DUI/reckless). Even without a prior record a child sixteen years old or older will be subject to automatic adult jurisdiction if he is alleged to have committed any of those “serious offenses” while armed with a firearm. Automatic adult jurisdiction also applies for any juvenile sixteen years old or older who is charged with burglary in the first degree who has any prior felony or misdemeanor offense. If the prosecutor files the case in Superior Court under these provisions for a “automatic” adult jurisdiction, the juvenile’s attorney may wish to challenge whether the case actually meets the criteria for “automatic” adult jurisdiction. If the juvenile challenges the State’s determination of the juvenile’s criminal history, the State must present evidence of the offender’s criminal history and establish it by a preponderance of the evidence. State v. Boot, 130 Wash 2d 555 (1996). If the defense attorney feels the prosecutor has overcharged the juvenile in the hope of securing adult court supervision, a Knapstad motion may be filed under State v. Knapstad, 107 Wash. 2d 346 (1986) to challenge the sufficiency of the State’s evidence to establish a prima facie case for all of the elements of the charge. State v. Boot, 130 Wash. 2d 555 (1996). If the State amends the charging document after “automatic” filing in Superior Court, charging the juvenile with a crime that does not meet the criteria for “automatic” filing, original jurisdiction over the case must revert back to juvenile court. State v. Mora, 138 Wash. 2d 43 (1999). This sometimes occurs when under a plea bargain the State agrees to amend the charge to a lesser charge. In some circumstances, a case originally filed in Superior Court must be returned to juvenile court if there has been confusion about the juvenile’s true age. State v. Anderson 83 Wn. App. 515 (1996); but the defendant who claims to be a juvenile has the burden of producing objective documentation verifying his or her true age, and a juvenile who willfully deceives the trial court about his or her true age may waive his or her right to a declination hearing. Sheppard v. Rhay, 73 Wn. 2d 734 (1968); Nelson v. Seattle MUN Court, 29 Wn. App. 7, review denied, 96 Wa. 2d 1001 (1981). If an offender was convicted in Superior Court after turning eighteen but it is determined he was under the age of eighteen when he was convicted, and there is not evidence he willfully deceived the court about his age, the court should hold a declination hearing, and grant him a new trial in adult court if it rules his case should have been retained in juvenile court in the first place. State v. Mendoza-Lopez, 105 Wn. App. 382 (2001). Mandatory Decline HearingFurthermore, in other cases “decline” hearings are now “mandatory” for juveniles of certain ages who have committed certain offenses although these “mandatory” decline hearings may be waived by agreement of the court, the parties, and their counsel, RCW 13.40.110. RCW 13.40.110 provides that a “decline” hearing is mandatory if the juvenile is fifteen, sixteen, or seventeen years old and the alleged offense is any one of the following class A felonies: first degree arson, first degree burglary, first degree child molestation, possession of an incendiary device, second degree rape, first degree rape of a child, second degree rape of a child, first degree robbery, and vehicular homicide, or an attempt, solicitation or conspiracy to commit a class A felony. If a fifteen year old is charged with any of the six offenses (listed above in Table 1) that cause “automatic” adult jurisdiction for sixteen and seventeen year olds, a “decline” hearing is also mandatory. Those offenses are first degree assault, first degree kidnap, first degree manslaughter, first degree murder, second degree murder, and first degree rape. A “decline” hearing is also mandatory when the juvenile is seventeen years old and the alleged offense is second degree assault, second degree child molestation, first degree extortion, indecent liberties, second degree kidnap and second degree robbery. Furthermore, a “decline” hearing is also mandatory for any juvenile who is charged with escape and is already serving a minimum juvenile sentence to age 21. See Table 2.
The Juvenile Justice Act of 1977, RCW 13.40, set forth that as a division of superior court the juvenile court had exclusive original jurisdiction over all proceedings relating to juvenile offenders (those under the age of eighteen) who have not been previously transferred to adult court. See State v. Sharon, 100 Wn. 2d 230 (1983). Although some states use the age at the time of the alleged offense to determine jurisdiction, Washington uses the age at the time proceedings are initiated against the alleged offender, State v. Calderon, 102 Wn. 2d 348 (1984). Thus, sometimes a delay in filing charges can result in loss of juvenile jurisdiction, and when that happens a three-step test is employed to determine whether the delay violated the accused’s due process rights. State v. Dixon, 114 Wn. 2d 857 (1990); see also State v. Fraiza, 918 P.2964 (1996) citing U.S. v. Lovasco 431 U.S. 783, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977). That test provides: “(1) that the defendant show prejudice resulting from the delay, (2) that there are reasons for the delay which the court must consider, and (3) where the State can justify the delay, that the court engage in balancing the State’s interest against prejudice to the accused.” Discretionary DeclineEven before enactment of the automatic adult court
jurisdiction provisions and the mandatory decline hearing provisions, the
juvenile court could “decline” jurisdiction and send a juvenile’s case to
superior court upon motion by the prosecution, the defense, or the court,
so-called “discretionary” decline hearings (see RCW 13.40.110(1). Thus, there
are now three ways in which superior court may obtain jurisdiction over juvenile
cases: “automatic” jurisdiction, decline after a “mandatory” decline hearing,
or decline after a “discretionary” decline hearing. The U.S. Supreme Court
has held that the decline hearing must be conducted before any trial on the
merits. Breed v. Jones, 421 Nature of Decline HearingsMental health experts routinely testify at either type of “decline” hearing, either called by the prosecution or by the defense. JucR 9.3(9) provides that “a juvenile who is financially unable to obtain investigative, expert, or other services necessary to an adequate defense may request that those services be provided at public expense…” All states have similar procedures for sending juvenile cases to adult court. A decline hearing is not considered to be “adversarial” in nature, and therefore, ordinary hearsay rules do not apply, since such a hearing does not result in a determination of guilt. Thus the hearing is considered to be “informal”, and ordinarily inadmissible evidence such as police reports, arrest records, probation reports, and psychological reports may be admitted into evidence. The judge’s discretion at the “informal hearing” is, however, limited by “general requirements of due process and fair treatment” even though it is not “governed by the strict rules of procedure and evidence applicable at either a criminal trial or at a juvenile court delinquency hearing.” State v. Piche, 74 Wn. 2d 9 (1968). Criteria for Making Decline DecisionsIn Kent v U.S., 383 U.S. 541 (1966), the
United States Supreme Court reversed the decision of the juvenile court judge
of the District of Columbia to waive, or decline, juvenile court jurisdiction.
The trial judge made no findings, and recited no reason for the waiver, and
did not allow the defendant, his parents, or his counsel to present evidence.
The U.S. Supreme Court stated, “We do not consider whether on the merits,
Kent should have been transferred, but there is no place in our system of
law for reaching a result of such tremendous consequences without ceremony—without
hearing, without effective assistance of counsel, without a statement of reasons.”
Thus, The U.S. Supreme Court announced eight factors that
the juvenile court judge must consider before waiving the juvenile court’s
jurisdiction. Although the eight Kent factors did not necessarily apply
to any jurisdiction other than the District of Columbia, Washington has expressly
adopted the eight Kent criteria in State v. Williams, 75 Wn.
2d 604 (1969). Most states have adopted similar criteria. The eight
All eight of these factors need not be proven; their
purpose is to focus and guide the juvenile court’s discretion. State v.
Toomey, 38 Wash App 831 review denied, 103 Wa. 2d 1012, cert denied, 471
The court’s decision will only be reversed if there has been an abuse of that discretion. In re Harbert, 85 Wash. 2d 719 (1975), State v. Furman, 122 Wash 2d 440 (1993). There is only one appellate case in Washington in which a trial court’s decision about the declination was reversed under this abuse of discretion standard. In that case, State v. Foltz, 27 Wn. App 554 (1980), a seventeen-year-old high school student was charged with participation in his family’s marijuana sales business. He was unmarried, living at home with his parents, and was unemployed. He had no criminal history. At the decline hearing only one witness was called, an evaluation analyst from the juvenile court staff, and she recommended Foltz be retained in the juvenile system. Nonetheless, the court declined jurisdiction. No reason was stated supporting the court’s conclusion that the case could be dealt with more appropriately by the adult correctional institution than by the juvenile authorities. The court of appeals held that the trial court did not provide a “statement of the reasons…of sufficient specificity to permit meaningful review” as required by In re Harbert, 85 Wn. 2d 719 (1975), and that the decision to decline jurisdiction was “clearly untenable”. The Court also held that, “The Court’s exercise of discretion must be consonant with the purposes of the Juvenile Justice Act of 1977 which are, broadly, to provide for the handling of juvenile offenders through a separate and independent system providing both punishment and treatment where necessary RCW 13.40.010(2). The A second constellation of amenability factors includes a youth’s treatment prognosis as reflected in clinical evaluations and prior correctional interventions. Once a youth exhausts available juvenile correction resources, transfer becomes increasingly likely. Podkopacz, M. and Feld, B. (1996): The end of the line: an empirical study of judicial waiver. 86 Journal of Criminal Law and Criminology 449. Finally, judges assess a youth’s dangerousness based on the seriousness of the present offense, whether the youth used a weapon, the length of the prior record, and expert opinion evidence. Judicial waiver criteria framed in terms of amenability
to treatment or dangerousness gives judges broad, standardless discretion.
Indeed, the Psychologists’ and Psychiatrists’ Roles in Decline HearingsSix of the The report then needs to address two main issues. The first is how “sophisticated and mature” the child is “as determined by consideration of his home environmental situation, emotional attitude and pattern of living”. Psychologists almost always use IQ testing to help address this “sophistication and maturity” factor, and school achievement testing, such as measuring the child’s reading, spelling, and mathematics skills, is also relevant here. Beyond that, however, the court will also be interested in knowing how far the child went in school, and whether he or she is still in school, whether the child has any significant mental or physical disabilities, the child’s employment history, whether the child has ever lived independently of adults, and if so, how long, whether the child has ever supported himself financially, how old the child’s friends and acquaintances are, etc. All of these factors go to whether the child’s “pattern of living” has been more similar to that of a child or that of an adult. The second main issue is the child’s predicted “future dangerousness”, which is always intimately tied up with the child’s predicted “amenability to treatment”, since obviously if treatment is effective, the child will be “rehabilitated” and will thus be no longer “dangerous”. Predictions of dangerousness by mental health experts fall into two general categories: “actuarial” and “clinical”. Actuarial predictions are made on the basis of weighing of quantifiable factors that have been established through scientific research. Researchers determine empirically which factors actually distinguish between those who re-offend violently and those that do not (and which factors do not distinguish between those who re-offend and those who do not) and then make predictions about a person’s likelihood of re-offending using a formula that takes into account those factors that have been found to be predictive of re-offending. Clinical prediction is less scientific—a clinician makes a prediction about an individual’s future dangerousness based on his clinical training and clinical experience. Almost everyone agrees that actuarial predictions are on average more accurate than clinical predictions, but obviously even actuarial predictions will be wrong a significant proportion of the time. Both types of predictions are admissible under the Frye standard which requires that expert opinion evidence be generally accepted in the relevant scientific community. In re detention of Thorell, Wash. State Supreme Court, No. 69574-1, decided 7-10-03. Numerous actuarial instruments are commonly used to make predictions of dangerousness for adults who have already committed at least one violent offense. However, predictions of dangerousness become more difficult when applied to juveniles. The main problem is that many adolescent offenders quit offending at the end of adolescence (“adolescent limited offenders”), whereas others (the more dangerous group) continue offending into adulthood (“life-course-persistent offenders”), and it is difficult to determine which group a given adolescent is in. Five criteria seem to be predictive of life-course-persistent offending: (1) early onset, (2) active offending during adolescence, (3) offense specialization, (4) offense seriousness, and (5) offense escalation. Conversely, three factors seem to be predictive of adolescent limited offenders: (1) onset of offending after age 11-13, (2) length of time since an offense at age 18, and (3) a lack of progression to serious offenses. See Tracy, P. and Kempf,-Leonard, K. (1996), Continuity and discontinuity in criminal careers. New York, Plenum; Elliott, D. (1994), Serious violent offenders: onset, developmental course, and termination, 32 Criminiology 1. See generally Redding, R. and Howell, J. (2000), Blended sentencing in American juvenile courts, in Fagan, J. and Zimring, F. (Eds.), The changing borders of juvenile justice: transfer of adolescents to the criminal court, Univ. of Chicago Press, Chicago, Page 171. Actuarial instruments based on these factors as well as others are now being developed, but there is considerable controversy as to whether they are accurate enough to justify their use, as some feel they make an unacceptably high number of “false-positive” predictions, i.e., cases in which they predict a high likelihood of re-offending, but the individual in fact does not re-offend. Perhaps the most sophisticated and best researched such instruments currently available are the Structured Assessment of Violence Risk in Youth (SAVRY), authored by Randy Brown, Psy.D., The Early Assessment Risk List for Boys (EARL-20B) authored by Leena Augimeri, M.Ed., which is used to assess elementary age boys, and the youth version of Robert Hare’s Psychopathy Check-List-Revised (PCL: Youth Version). The SAVRY is available at www.specializedtraining.com, (800) 848-1226. The EARL-20B and the PCL: Youth Version are available or soon to be available from Multihealth system (www.MHS.com). All of these will be considerably more accurate on average than predictions based merely on clinical training and experience. Recidivism: Juvenile vs. Adult JurisdictionOne very important consideration is whether offenders retained under juvenile jurisdiction are more or less likely to re-offend than similar offenders who are declined and remanded to adult jurisdiction. Since decline decisions are influenced by seriousness of the alleged offense as well as the prior criminal record, when undertaking such research it is important that steps be taken to attempt to ensure the equivalence of the two groups. One group of studies was done by Jeffrey Fagan. See Fagan, J. (1991), The comparative impacts of juvenile and criminal court sanctions on adolescent felony offenders, Final Report, Grant 87-IJ CX 4044, to the National Institute of Justice, Washington: U.S. Department of Justice. See also Fagan, J. (1995), Separating the men from the boys: the comparative advantage of juvenile versus criminal court sanctions on recidivism among adolescent felony offenders, in Howell, J.; Krisberg, B.; Hawkins, J.; and Wilson J. (Eds.), Serious, violent and chronic juvenile offenders: A sourcebook. Thousand Oaks, Calif: Sage. See also Fagan, J. (1996), The comparative advantage of juvenile versus criminal court sanctions on recidivism among adolescent felony offenders. 18 Law and Policy 77. Fagan identified two counties in New York and two counties in New Jersey that were similar economically and demographically, and had very similar statutes for robbery and burglary. In New York fifteen and sixteen-year-olds were automatically declined and sent to adult court, but in New Jersey boys of the same age were retained in juvenile court. 400 offenders convicted of either burglary or robbery were randomly selected, evenly divided across the two states and the four counties. Recidivism was evaluated after most of the offenders had completed their sentences and had been released for at least four years. There were no significant differences for the burglary offenders, but for the robbery offenders, the New York group which had been treated as adults showed a higher re-arrest rate, a more rapid re-arrest time, and a higher re-incarceration rate than the New Jersey robbery offenders who had been treated as juveniles; these effects of jurisdiction type were independent of sentence length. Another group of studies reported in the journal Crime and Delinquency was carried out within one state, Florida. Bishop, D.; Frazier, C.; Lanza-Kaduce, L.; and White, H. (1996), The transfer of juveniles to criminal court: Does it make a difference? 42 Crime and Delinquency 171, and Winner, L.; Lanza-Kaduce, L.; Bishop, D.; and Frazier, C. (1997), The transfer of juveniles to criminal court: Re-examining recidivism over the long term, 43 Crime and Delinquency 548. The researchers used matching procedure to pair each case transferred to adult court with an equivalent case which was retained in the juvenile system. Each pair was matched on seven factors: the most serious offense charged, the number of counts charged, the number of prior delinquency referrals, the most serious prior offense, age, race, and gender. Comparisons were based on 2,738 matched pairs. Recidivism was compared after 24 months of release and again after up to seven years of release. At both time periods those sent to adult court re-offended significantly more than those retained in the juvenile system. Both of these groups of studies show that those treated as adults tend to re-offend more than those treated as juveniles, providing a strong case for less declination to adult court based on a protection of society argument, since declination appears to increase recidivism! Indeed, a review of 50 studies of juvenile transfers to the adult court system concluded that recidivism rates are much higher among juveniles transferred to adult court than among those retained in the juvenile system. Howell, J. (1996), Juvenile transfers to the criminal justice system: state of the art, 18 Law and Policy 17. Do Juvenile Intervention Treatments Work?A related issue is whether there are effective interventions for serious violent juvenile offenders. Lipsey and Wilson reviewed 200 evaluations of treatment programs serving adjudicated serious or violent offenders. They found that the average program reduced recidivism about twelve percent in comparison with control groups, lending support to the contention that treatment of serious and violent juvenile offenders can be effective. Lipsey, J. and Wilson, D. (1998), Effective interventions with serious violent juvenile offenders: a synthesis of research, in Loecher, R. and Farrington, D. (Eds.), Serious and violent juvenile offenders: risk factors and successful interventions, Sage, Thousand Oaks, Calif. What Resources are Available in the Juvenile System and what Resources are Available in the Adult System? Of course, the judge charged with making a decline decision needs to know what resources or treatments are actually going to be available to the child if he is sent to the juvenile system, versus what resources or treatments will be available if the child is sent to an adult prison. Often employees of each institution are called as witnesses at decline hearings in order to provide testimony as to what services would be available in each setting. Ideally a mental health professional who testifies at a decline hearing should know something about what resources each institution has available. Only then will the mental health professional be able to offer an opinion as to whether there is a “good-fit” in each setting between the child’s needs in order for him to be rehabilitated and the resources available. The court also needs to be concerned with whether the juvenile institution can handle the child from a security point of view, so the mental health professional will often have to address such questions as whether the child might put other youth or staff at a juvenile institution in danger, or whether the child is likely to escape from a juvenile facility; courts must often consider the prospects of harm to others in a variety of contexts. Grisso, T. (1998), Forensic evaluation of juveniles, Sarasota, Florida, Professional Resource Press. Thus, the issue becomes whether the child is amenable to treatment given the resources available in the juvenile system. Furthermore, since there is always a future date (or range of dates) at which the child will be released if he remains in the juvenile system (often the child’s 21st birthday), the issue becomes whether rehabilitative efforts are likely to be effective within the period of time that the juvenile system would have custody of the child. The amenability-to-rehabilitation standard therefore requires consideration of (1) characteristics of the youth, (2) the state’s rehabilitative resources, and (3) the time available to accomplish rehabilitation. Grisso, T. (2000), Forensic clinical evaluation related to waiver of jurisdiction, in Fagen, J. and Zimring, F. (Eds.), The changing borders of juvenile justice: transfer of adolescents to the criminal court, Univ. of Chicago Press, Chicago. Therefore, evaluators need to first describe the youth, listing both the reasons for his alleged violent behavior and any resiliency factors which might suggest enhanced amenability to treatment. Evaluators should consider the usual sources commonly utilized in assessing youth, including parental reports, school data, records of mental health treatment, psychological testing, family history, information about responses to any prior rehabilitative efforts, etc. The evaluator then needs to describe what he believes needs to change before the child can be rehabilitated, which requires a theory as to what has caused the delinquency that brought the child before the court. The evaluator then needs to outline a practical rehabilitation plan, and to indicate whether the rehabilitation can likely be effectuated in the time-span available. Obviously, evaluators who are not well grounded in the field of child psychology will not be competent to undertake such evaluations. Grisso, T. (1998), Forensic evaluations of juveniles, Sarasota, Florida, Professional Resource Press. ConclusionsWashington is one of very few states that has no statutorily enacted lower limit for decline to adult jurisdiction; theoretically children as young as eight years old could be sent to adult court, RCW 9A.04.050; State v. Fuhrman, 122 Wa. 2d 440 (1993), and a child as young as 13 with borderline mental retardation has actually been declined. State v. Massey, 60 Wn. App 131 (1990). However, the death penalty is not available for children who committed their crimes before age 18, State v. Fuhrman, 122 Wa. 2d 440 (1993). Decline cases are some of the most complex evaluations a forensic psychologist can be asked to perform, as the evaluator must be knowledgeable and competent in a number of areas of both psychology and law. A decline evaluation should be requested in every case in which the outcome is fairly in dispute; in some cases decline is a foregone conclusion, and in others retention in juvenile court is highly likely, but in the vast majority of cases a competent evaluation can provide highly useful information to assist the court in making a decision.
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