Judicially Waived Cases

Although a vast majority of juvenile cases are handled formally or informally through the juvenile justice system, some get handled through the adult criminal justice system via a process called a judicial waiver. A judicial waiver refers to the mechanism wherein a juvenile court judge waives jurisdiction over a case and refers it to criminal court jurisdiction instead.

Each state has an upper age at which youth are no longer processed through the juvenile court and are instead tried as adults in criminal court (for some states this upper age is 15 and for others it is 16 or 17). However, depending on the youth’s criminal history, the seriousness of the alleged crime committed, and the youth’s prospects of rehabilitation, juvenile courts have the option of sending a case to criminal court with the authorization of the juvenile court judge. ¹ This is possible due to a genre of laws called transfer laws. A judicial waiver typically occurs for violent offenses, yet even among such cases it is a relative rarity. In 2018, 1 percent of petitioned cases in juvenile courts were waived to criminal court. ²

There are three categories of judicial waiver laws that states may impose:

• Discretionary: Juvenile court judges have discretion to decide whether to waive jurisdiction of the juvenile’s case and refer it over to criminal court. Cases that meet certain threshold requirements established by Supreme Court case Kent v. United States are eligible to be waived and transferred to criminal court upon authorization of the judge but are not required to be transferred. Judges often consider a youth’s past criminal history and severity of the crime at hand when deciding whether to waive the case to criminal court.
• Presumptive: Juveniles who meet established criteria such as age and severity of offense are presumed to be suitable for criminal court rather than juvenile court. If the juvenile/the juvenile’s legal representation does not make a strong enough argument against transfer, their case is automatically transferred to criminal court.
• Mandatory: Juvenile cases that meet criteria for age, severity of offense, and/or prior criminal record are required to be transferred from juvenile court to criminal court. In such cases, the only role of the juvenile court is to verify that the case meets said waiver criteria and make the official transfer. ³

See Figure 2 for statistics on the prevalence of judicially waived cases across all four offense categories between 1985-2019.

Figure 2: Delinquency Cases Judicially Waived to Criminal Court, 1985-2019

Source: https://www. ojjdp. gov/ojstatbb/court/qa06502. asp?qaDate=2019

The number of delinquency cases judicially waived to criminal court in 2019 was 75 percent less than the amount waived in 1994, the peak year. This demonstrates the overall decrease in proportion of juvenile justice cases waived in recent years.

Additionally, prevalence of judicial waivers varies according to offense category, with person offense cases representing 61 percent of waived cases overall in 2019.⁴ Person offense cases thus comprise the largest share of judicially waived cases among the four offense types, with 1.5 percent of all petitioned person offense cases being waved in 2018 compared to the .8 percent of drug offense cases, 0.7 percent of property offense cases, and 0.3 percent of public order offense cases.⁵

Waived Cases Across Gender, Race, and Ethnicity

Like other aspects of the juvenile justice system, significant disparities exist across gendered and racial/ethnic lines regarding likelihood of a youth’s case being handled within the juvenile justice system versus being judicially waved. Evidence of those disparities, however, provide a great deal of room for further research, investigation, and meaningful policy and practice changes to make the judicial waiver a more equitable mechanism of the justice system as it was intended.

• Across all offense categories (person offenses, property offenses, drug offenses, public order offenses), juvenile cases involving males were more likely to be waived to criminal court than cases involving females in 2018.⁶
• Female juveniles who commit offenses are typically given less punitive sanctions than equally situated males, and in a 2019 study it was found that gender of the juvenile did in fact have an impact on the judicial decision to waive, with female youth experiencing lesser rates of judicial waivers.⁷
• In 2018, males accounted for 92 percent of all waived cases in the U.S.⁷
• Black youth are transferred from the juvenile justice system to the criminal justice system via a judicial waiver at greater rates than their White peers. In one study representative of this phenomenon, Black males had the highest odds of being transferred compared to all other race and gender combinations, while White females received the most leniency and were the least likely to be waived to adult court.⁹
• The number of judicially waived cases involving White youth declined 61 percent between 2005 and 2018, while the number of judicially waived cases involving Black youth during that same time period declined 15 percent and the number involving Hispanic youth decreased 16 percent. ¹⁰
• In 2018, the likelihood of waiver in person offense cases for Black youth was more than double the likelihood for White youth. The likelihood of waiver in person offense cases for Hispanic youth during that time was 1.4 times the likelihood for White youth, the likelihood for Asian youth was 1.3 times the likelihood for White youth, and the likelihood for Native American youth was the same as that of White youth. ¹¹

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