Who decides which children will be tried as adults?

Answers to your questions about the news.
Aug. 14 2007 6:04 PM

When Do Kids Get Tried as Adults?

How to pull a child out of the juvenile justice system.

Last week, two 15-year-olds were arrested in connection with the execution-style murders of three college students in a Newark, N.J., schoolyard. Local authorities want to prosecute them as adults. Who decides which minors will be tried as adults?


Usually, a juvenile court judge does. "Judicial waiver" is the most widely used means for transferring a minor into the adult criminal justice system. Prosecutors frequently ask juvenile court judges to hold hearings about whether their exclusive jurisdiction may be waived so that minors may be tried as adults. Some states leave the decision entirely up to the judge, others impose a presumption in favor of waiver, and still others make judicial waiver mandatory for very serious crimes. The factors judges consider also vary by state, but based on the Supreme Court's direction in Kent v. United States, they generally include the following: the nature and circumstances of the crime; whether the offense was committed in an aggressive, violent, or premeditated manner; the merit of the charges; the sophistication, maturity, and prior history of the minor; the need to protect the public; and the likelihood that the child can be treated and rehabilitated. Like all judicial findings, these decisions are subject to appeal.

Prosecutors can also be authorized to make the decision themselves. In some states, lawmakers give juvenile and adult criminal courts concurrent authority to hear cases involving certain crimes. Prosecutors can then unilaterally decide where to file charges against a minor. This decision is not subject to any review, as it falls within prosecutors' traditional discretionary powers.

Sometimes state legislatures decide the outcome. With a "statutory exclusion," lawmakers grant criminal (not juvenile) courts jurisdiction over whole classes of cases, such as those involving serious violent crimes or crimes committed by minors with a prior record. With statutory exclusion, lawmakers essentially predetermine that a minor will be treated as an adult and take the decision out of the hands of both the courts and the prosecutor.

In Newark, where the two 15-year-olds will be fighting for their freedom, juvenile courts have exclusive authority over all criminal cases involving individuals under the age of 18. But the judge may not have much of a choice in this case. New Jersey law requires juvenile court judges, if requested, to transfer the cases of minors over the age of 14 who are accused of, among other things, criminal homicide or possession of a firearm with intent to use it against another person—unless the minor shows promise of rehabilitation before the age of 19.

Got a question about today's news? Ask the Explainer.

Harlan Protass is a criminal defense lawyer in New York and an adjunct professor at the Benjamin N. Cardozo School of Law, where he teaches about sentencing.



Smash and Grab

Will competitive Senate contests in Kansas and South Dakota lead to more late-breaking races in future elections?

I Am 25. I Don’t Work at Facebook. My Doctors Want Me to Freeze My Eggs.

The XX Factor
Oct. 20 2014 6:17 PM I Am 25. I Don’t Work at Facebook. My Doctors Want Me to Freeze My Eggs.

Republicans Want the Government to Listen to the American Public on Ebola. That’s a Horrible Idea.

The Most Ingenious Teaching Device Ever Invented

Tom Hanks Has a Short Story in the New Yorker. It’s Not Good.

Brow Beat

Marvel’s Civil War Is a Far-Right Paranoid Fantasy

It’s also a mess. Can the movies do better?

Watching Netflix in Bed. Hanging Bananas. Is There Anything These Hooks Can’t Solve?

The Procedural Rule That Could Prevent Gay Marriage From Reaching SCOTUS Again

  News & Politics
Oct. 20 2014 8:14 PM You Should Be Optimistic About Ebola Don’t panic. Here are all the signs that the U.S. is containing the disease.
Oct. 20 2014 6:48 PM Apple: Still Enormously Profitable
Oct. 20 2014 3:16 PM The Catholic Church Is Changing, and Celibate Gays Are Leading the Way
  Double X
The XX Factor
Oct. 20 2014 1:10 PM Women Are Still Losing Jobs for Getting Pregnant
  Slate Plus
Tv Club
Oct. 20 2014 7:15 AM The Slate Doctor Who Podcast: Episode 9 A spoiler-filled discussion of "Flatline."
Brow Beat
Oct. 20 2014 9:13 PM The Smart, Talented, and Utterly Hilarious Leslie Jones Is SNL’s Newest Cast Member
Future Tense
Oct. 20 2014 4:59 PM Canadian Town Cancels Outdoor Halloween Because Polar Bears
  Health & Science
Medical Examiner
Oct. 20 2014 11:46 AM Is Anybody Watching My Do-Gooding? The difference between being a hero and being an altruist.
Sports Nut
Oct. 16 2014 2:03 PM Oh What a Relief It Is How the rise of the bullpen has changed baseball.