Prosecutorial Transfer Method

As noted in Bishop and Frazier’s article, the most controversial transfer method is the prosecutorial, or “direct file” waiver. Fourteen states have adopted the use of this transfer method. (Juveniles in Court, 2003) Under prosecutorial waiver, concurrent jurisdiction is given to both the juvenile and criminal courts and it is up to the prosecutor’s discretion to determine in which environment the case will be heard. In general the prosecutor’s decision may not be appealed. (Burrow, 2005)

Additionally, not all state statutes were created equal when guiding this waiver application, with some stating clear criteria and others providing vague outlines on what should be considered when filing the case in juvenile or criminal court. Prosecutorial

Some state appellate courts view the decision as within a prosecutor’s charging discretion, so a prosecutor may use similar criminal charging considerations in determining where to file a juvenile case. (Soba, 1996)

The prosecutor’s first task in deciding where to file the case is to determine if enough evidence supports the complaint’s allegations, which is the most basic element of any charge. After establishing that such evidence exists, the prosecutor may then consider such factors as the dangerousness of the offense, the juvenile’s prior record, age, and the responsiveness to juvenile court treatment programs. (Soba, 1996) Prosecutors are historically known to be more concerned with retribution rather than rehabilitation. Critics feared the provisions allowing a quick and easy transfer of juveniles to criminal court would invite more room for “careless applications or worse yet, deliberate misapplication and abuse of power.” Once more, concerns regarding youths who may have responded to therapy or “matured out” of their juvenile misconduct would now be prosecuted in criminal courts and confined with adults, exposing them to unnecessarily negative