미국소년사법제도의 선의권 (이송제도(Transfer System))의 변화 -엄벌화 정책에서 보호주의로의 회귀-

Abstract

One of the more hotly debated subjects with regard to juveniles has to do with the option to waiver to adult court. Currently, there are three mechanisms by which a juvenile's case may be waived to an adult court. Judicial Waiver Offenses: A judicial waiver occurs when a juvenile court judge transfers a case from juvenile to adult court in order to deny the juvenile the protections that juvenile jurisdictions provide. All states now provide for judicial waiver and have set a variety of lower age limits. In most states, the youngest offender who can be waived to adult court is a 17 or 18-year-old, although in some states, this age is as low as 13 or 14. Usually, the offense allegedly committed must be particularly egregious in order for the case to be waived judicially, or there must be a long history of offenses. Statutory Exclusion: By 1997, 28 states had statutory exclusions, which are provisions in the law to exclude some offenses, such as first-degree murder, from juvenile court jurisdiction. This number is expected to increase. Concurrent Jurisdiction: Some states also have a legal provision which allows the prosecutor to file a juvenile case in both juvenile and adult court because the offense and the age of the accused meet certain criteria. Prosecutorial transfer does not have to meet the due process requirement stipulated by Kent v. U.S. Approximately 15 states currently have this provision, although this number is expected to increase in the next few years. The most important case guiding juvenile waiver is Breed v. Jones (1975). This case designates that a juvenile cannot be adjudicated in a juvenile court then be waived and tried in an adult court. To do so is to try the youth twice for the same crime (double jeopardy), which violates the Fifth Amendment. However, in reality, this case did not have much impact on the juvenile system since juveniles are now subject to a waiver hearing which appears to be similar to a trial except in outcome. Impact of Transfer to Adult Court: Transfer into an adult court proceeding can result in several negative consequences for the accused. Juvenile proceedings take place in a closed courtroom, while adult proceedings are typically public. A conviction record is generally sealed for juveniles, while adult records are frequently publicly accessible. Adult penalties tend to be much harsher than the penalties for the comparable juvenile offenses. The juvenile courts tend to be focused on the rehabilitation of the accused, unlike adult courts which may be focused more on punishment. Sadly, juveniles who serve jail and prison time are much more likely to be assaulted than those serving in juvenile facilities.