Forensic Corner; Waiver Criteria

Lee Haller, M.D.

Serious juvenile crime continues to be of concern to the public. For several years now, there has been a push to punish those adolescents who commit serious crimes by trying them in adult courts. Because all states have a juvenile court system which has been designated by law to handle juvenile offenses, a way had to be found to get the minor released from juvenile court jurisdiction in order to be tried as an adult. This has happened in one of two ways: a) by waiver - which is the process whereby the state petitions the juvenile court to relinquish jurisdiction over the case, thus allowing the child to be tried as an adult; or b) by enactment of new statutes which mandate that those charged with certain crimes, such as rape, armed robbery, or murder will automatically by tried as adults, regardless of age.

When a juvenile is tried in adult court, conviction can result in lengthy imprisonment or even the death penalty. Recently, in Montana, a 14-year old was sentenced to 50 years for rape and assault. Another 14-year-old in South Dakota was sentenced to life in prison after being found guilty of first-degree murder. Since such outcomes are clearly antithetical to rehabilitation, it behooves the child and adolescent psychiatrist involved in such a system to search for ways to see that waiver is avoided in cases where the juvenile might be treatable. This involves being familiar with the waiver process.

In 1998 there were 12 cases heard by 9 different state supreme courts relating to various aspects of the issue of waiver. Some of them dealt with the specific factors to be considered by a judge in arriving at a decision to try the juvenile as an adult (17 Child Law Practice 129, 1998). In general, the judge is required to find that there is a strong case against the juvenile for having committed a serious offense, that little likelihood of rehabilitation exists, and that waiver would be in the public's best interest. Interestingly, some statutes even specify that the judge must find that waiver would be in the best interest of the child!

In order to make these findings, various factors are to be examined. These are delineated in state statutes, and involve factors such as the following: whether the juvenile has a pattern of repeated offenses; whether the juvenile has failed at previous rehabilitation efforts; personal and psychological background history; amenability to treatment in the juvenile system; presence of mental illness; seriousness of the offense; whether violence was involved; whether premeditation was involved; whether the crime was committed against property or person; whether the public would be protected if the juvenile was kept in the juvenile system; circumstances under which the crime was committed; resources of the juvenile court; degree of criminal sophistication; and influence of peers.

The judge may request an evaluation by a child and adolescent psychiatrist to determine whether or not the juvenile has a mental illness and could benefit from treatment provided under the auspices of the juvenile court. In performing these assessments, it is important for the psychiatrist to do not only the standard psychiatric interview, but also to give attention to these specific factors that the judge will consider. For example, if violence was involved, the psychiatrist should assess whether mitigating circumstances were present, such as acute intoxication (as part of a drug addiction), paranoid reaction to perceived threat, etc.

Since one of the factors to be considered is the juvenile's response to prior rehabilitation efforts, the child psychiatrist can make a significant contribution by assessing this aspect. Were the program(s) which the juvenile failed adequate enough for a likelihood of success? We now have knowledge of the factors necessary for a program to have a chance at effectiveness. We know that successful programs are multi-systemic and involve mental health treatment, substance abuse treatment, academic assessment and intervention, family intervention, peer group changes, and community support. If the juvenile has failed to be rehabilitated by an inadequate program, the problem does not lie solely with the juvenile. Getting this information before the court may lead to the juvenile being retained under juvenile court jurisdiction with further rehabilitation ordered in a more appropriately structured and designed program.

Although it is expensive to the community to implement such treatment programs, the cost pales in comparison to that of housing a juvenile in prison for 20 years to life after being convicted of a class A felony. Furthermore, incarceration will not provide the juvenile with the skills necessary to become functional upon release, thus heightening the likelihood that he will be re-arrested and re-incarcerated for another lengthy prison term.

Keep in mind, though, that not all juvenile offenders respond to even these intensive intervention programs. Therefore, the juvenile justice system may have nothing more of offer. Such a conclusion by the psychiatrist may mean the juvenile is waived to adult court and eventually sentenced to prison. Therefore, if one is going to participate in performing these examinations, then one must be able to accept the feeling of impotence associated with being unable to help.

Dr. Haller is in the private practice of forensic psychiatry in Potomac, Maryland

AACAP News/March-April 1999