We read about it in the newspapers: "Prosecutors Seek Adult Trial for Boy, 14, in Mall Shooting."¹ We see and hear about it on television: "Debate over Making Juveniles Stand Trial as Adults for Crimes."² It happens in our states, in our cities, and even in our own backyards: "Police Arrest Three Teen-Agers in Elderly Woman's Death."³ Juvenile crime. Increasingly, America's youth are committing more and more violent crime.

On a national level in 1992, juveniles ⁴ accounted for 112,409 of the 641,250 violent crime arrests.⁵ America's juveniles committed 16.3 % of the murders in the country and 17.5% of the total violent crimes in the United States in 1992.⁶ In Ohio alone, those 17 years of age and younger comprised 12% of Ohio's total arrests for murder in 1992, and 20% of violent crime arrests.⁷

How are juvenile courts responding to these frightening statistics? Should we abandon the juvenile system altogether and transfer our children to adult courts, adult prisons, and death row? Is the criteria Ohio and other states use to determine such transfers objective, or does it permit too much judicial discretion?

This Comment begins with an introduction to the history and purpose of the juvenile justice system, and the procedure for transferring juveniles to adult courts. Part II discusses the United States Supreme Court cases that began eroding the original purpose of the juvenile court by affording juveniles some of the same constitutional rights enjoyed by adult offenders. Part III focuses on Ohio's present juvenile transfer procedure to adult court, discuss ing the broad discretionary power given to juvenile court judges in electing to do so. Part IV describes the criteria Ohio juvenile court judges use to de termine whether to transfer juveniles, showing its subjectivity and possible need for restraint. Part V provides information on Ohio's new legislation in juvenile law, effective January 1, 1996. This Comment concludes with sug gestions to reform the juvenile justice system and help it to return to accom plishing its original goal: helping children to cope with their problems and to deter them from delinquent behaviors.

The practice of having separate courts for juveniles originated in the United States as a result of two significant events: the Industrial Revolution ⁸ and the Progressive Movement.⁹ Prior to these events, the law treated children in the same manner as adults, and at times housed juvenile offenders in the same institutions as adult offenders.¹⁰ In 1899, Illinois established the first juvenile court ¹¹ and, by 1925, every state but two had established juvenile courts.¹² By 1945, every state had some type of juvenile court in place.¹³

The initial underlying philosophy of the juvenile court system was parens patriae.¹⁴ This philosophy sought to rehabilitate juveniles ¹⁵ and treat the child "not as a criminal, but as a child needing care, education and protection. "¹⁶ Juvenile court judges served to protect juveniles as they were thought unable to care for themselves.¹⁷ The juvenile system itself sought to protect the child, through both its focus on treatment and its less decriminalized pro cedural terminology.¹⁸ The juvenile system and its parens patriae philosophy remained relatively stable from its inception in 1899 through 1966.¹⁹ In fact, the United States Supreme Court never decided a juvenile court case until 1966,²⁰ when it decided Kent v. United States.²¹ Kent and its progeny initiated a re-examination of the juvenile system's philosophy and procedure, and the lack of constitutional rights afforded to its offenders.

Transfer of Juvenile Cases to Adult Courts History and Rationale

The procedure of transferring jurisdiction from juvenile court to adult court has existed since the establishment of the juvenile court in 1899.²² The underlying philosophy of transfer proceedings was to evaluate the likelihood that a child could be rehabilitated within the juvenile justice system.²³ While trying to embrace most juveniles with its ability to rehabilitate, the juvenile system still recognized that there were some juveniles beyond its reach.²⁴ The law vested juvenile court judges with sole authority to determine whether juveniles should be transferred to the adult system.²⁵ Thus, transfer proceedings allow a juvenile court judge to determine if the child is amenable to treat ment within its confines and, if not, to send those unamenable to the offerings of juvenile rehabilitation to the adult courts.²⁶

The number of juveniles transferred to adult court today has increased astronomically from the amount of children transferred when the juvenile sys tem was first established.²⁷ Some authorities believe that this increase has resulted from a changing view of children and their mental reasoning abilities.²⁸ Others suggest that the juvenile court uses transfer to set an example to other juveniles, and to appease the public demand for justice when children commit serious crimes.²⁹ Still others believe that transfer is used more often today because of its tremendous deterrent effect, as juveniles are fearful of adult courts.³⁰

In 1966, the Supreme Court took its first juvenile case, Kent v. United States.³¹ It involved transferring a juvenile case to adult criminal court for adjudication.³² The Supreme Court, in an opinion by Justice Fortas, ruled the transfer procedure invalid because it was done without a hearing, without assistance of counsel and without the judge stating his reasons for transfer.³³ The Court also recognized the significance of the transfer procedure.³⁴ While the Court acknowledged the substantial latitude given to the juvenile court in determining if it should retain jurisdiction over a juvenile, it stressed that this latitude is not a "license for arbitrary procedure" by the court.³⁵ Thus, in Kent, the Court began to recognize that constitutional rights given to adult offenders, such as due process, should exist in the juvenile court system as well- especially in transfer proceedings.³⁶ The juvenile court was beginning to act as a court rather than a parent in affording its offenders constitutional rights enjoyed by adult offenders.³⁷

In an appendix to its decision, the Kent Court enumerated factors that a juvenile court judge might evaluate in deciding whether or not to transfer a juvenile to adult court.³⁸ The Court specifically noted that not all factors will apply in each case, but staff of the juvenile court must fully develop all avail able information relating to the factors when a transfer proceeding is the issue. Many states, including Ohio, incorporated these factors into their statutes and juvenile rules.

The next case to come before the Supreme Court was In re Gault,³⁹ another case blurring the distinctions between the juvenile and adult courts. It incorporated adult constitutional rights into the juvenile courts, further eviscerating the parens patriae philosophy.⁴⁰ The Supreme Court, in an opinion again penned by Justice Fortas, held that all juveniles were entitled to a constitutional right to: (1) notice;⁴¹ (2) counsel;⁴² (3) confrontation and cross-examination of witnesses;⁴³ and (4) invoking the privilege against self-in crimination.⁴⁴ The Court maintained that its decision would not destroy the juvenile justice system, although it drastically altered it.⁴⁵ The Court further limited its holding to only the adjudicatory hearing to delinquency proceed ings, where a criminal violation is alleged and confinement may occur.⁴⁶

In In re Winship,⁴⁷ a 1970 case, the Supreme Court held that the "beyond a reasonable doubt" standard of proof applied to the adjudicatory stage of delinquency cases where a child's liberty was at stake.⁴⁸ The Court returned to the same reasons set forth in Gault to justify its decision.⁴⁹ Although the Court again stressed that its decision to provide juveniles with similar constitutional safeguards as adult offenders would not dismantle the juvenile system's philosophy and procedure, this case and its progeny eroded many areas in the juvenile court. The juvenile court judge's role was no longer protectorate parent of the children. Instead, a rigid, more adult-like atmo sphere attached to the juvenile system.⁵⁰

The case of Breed v. Jones⁵¹ applied yet another adult offender constitutional right to juvenile courts; that of the protection against Double Jeopardy.⁵² Justice Burger and the Majority held that jeopardy attached when the juvenile court started hearing evidence at its adjudicatory proceeding.⁵³ The Supreme Court thus determined that the waiver hearing must occur prior to an adjudicatory hearing, or double jeopardy is violated.⁵⁴

However, McKeiver v. Pennsylvania⁵⁵ marked a departure by the Supreme Court in its willingness to afford adult constitutional rights to juvenile offenders.⁵⁶ Holding that the right to trial by jury did not apply to juvenile offenders in any juvenile procedure,⁵⁷ Justice Blackmun returned to the initial reasons for the juvenile justice system: parens patriae and rehabilitation and treatment of the juvenile.⁵⁸ The Supreme Court feared that a jury trial would mesh the juvenile and adult systems together in such a way as to end the juvenile court informalities, and allow the adversarial procedures of the adult system to dominate.⁵⁹

This line of Supreme Court cases afforded juveniles most of the constitutional rights granted to adult offenders. The Kent decision provided constitutional due process and Gault conferred juveniles the rights to notice, counsel, confrontation, cross-examination and self-incrimination protection. The Supreme Court's holding in Winship established a "beyond a reasonable doubt" standard in juvenile adjudicatory hearings, and Breed granted juvenile offenders the protection against double jeopardy. The McKeiver decision contained the one constitutional right the Supreme Court refused to extend to juvenile offenders, the right to a jury trial.

Recently, critics have become increasingly dissatisfied with the juvenile system, as they feel it is too soft on juvenile offenders.⁶⁰ They believe this has resulted from allowing juveniles "the best of both worlds;"⁶¹ adult constitutional protections within the parens patriae philosophy of the juvenile system. A skyrocketing increase in juvenile violent crimes has also contributed to discontentment with the juvenile system.⁶² As a result of this growing d iscontent and a "get tough" philosophy, juvenile courts are increasing the use of the transfer procedure, so that the adult courts can impose greater and harsher punishments on convicted juveniles.⁶³

The Ohio Supreme Court recognized the parens patriae doctrine as early as 1869.⁶⁴ Shortly thereafter, Ohio became one of the first states to enact juvenile legislation when it established the Cuyahoga County Juvenile Court in 1902,⁶⁵ and expanded the system throughout the state by 1906.⁶⁶ Prior to the United States Supreme Court decision in Gault, juvenile court procedure did not extend the constitutional guarantees afforded adults in the criminal system.⁶⁷ As a result of the Gault decision, the legislature altered the Ohio Juvenile Code and, in 1968, adopted the Modern Courts Amendment to the Ohio Constitution, allowing the Ohio Supreme Court the authority to make procedural rules.⁶⁸ As a result of this amendment, the Court created the Rules of Juvenile Procedure.⁶⁹ In 1994, the Ohio Rules of Juvenile Procedure were revised to make the Rules conform with statutory changes in the Ohio Revised Code.⁷⁰

Both Ohio Revised Code section 2151.26 and Juvenile Rule 30 govern Ohio's juvenile transfer proceedings.⁷¹ Both recognize the juvenile judge's discretionary transfer ability,⁷² holding that the judge must find reasonable grounds to believe that: (1) the child is not amenable to rehabilitation or further care in any juvenile delinquent facility; and (2) the safety of the com munity may require legal restraint for a period extending beyond the child's majority.⁷³ A judge must further consider the violence of the act and whether the victim is elderly or disabled.⁷⁴

Ohio affords the juvenile offender the constitutional rights resulting from Kent v. United States, In Re Gault, In Re Winship, and Breed v. Jones.⁷⁵ The juvenile is not given a jury trial in Ohio, just as the United States Supreme Court ruled in McKeiver v. Pennsylvania.⁷⁶

In a discretionary transfer proceeding in Ohio, two hearings are held; a preliminary hearing ⁷⁷ and a second hearing to determine amenability to juvenile treatment.⁷⁸ This hearing allows the juvenile judge the discretion to determine whether to transfer the juvenile to adult court. Ohio also has a mandatory transfer proceeding, where the juvenile judge must transfer to criminal court a juvenile who has committed aggravated murder or murder when the court determines that: (1) probable cause exists to believe that the child committed the act; and (2) the court had previously adjudicated the juvenile for aggravated murder or murder.⁷⁹

Subjective Discretion of Ohio Juvenile Judges in Transfer

Although the law requires juvenile court judges to consider specific factors in determining amenability to treatment ⁸⁰ and the safety of the community, the individual judge possesses almost unbridled discretion in this evaluation and final determination, especially with respect to the criteria for determining amenability to rehabilitation.⁸¹ This discretion is subjective, based on each judge's opinion regarding the proper weight to attach to each factor of the transfer-decision criteria, if the judge even considers all of the criteria.⁸² Further, the enumerated criteria for rehabilitation, although mandating that the judge "shall" consider them, are not the only guides a judge may use in making a transfer decision. Any other relevant circumstances can be considered.⁸³ Although the judge must state the reasons for the transfer,⁸⁴ the weight assigned each factor will not necessarily be reflected in the trans fer order, as the judge is not required to express the weight given each of the factors.⁸⁵ This leaves the juvenile in a vulnerable position. The place of sentencing will depend solely on a judge's preference for certain transfer criteria over others, as well as preference for the transfer procedure itself, and no adequate checks exist on the judge's decision.⁸⁶

With such broad judicial discretion, the potential for abuse of transfer ⁸⁷ and inconsistent transfer ⁸⁸ is great. By determining whether to transfer the minor, the juvenile court judge will also determine where the juvenile will ultimately be punished, either in a juvenile facility where treatment is directed at rehabilitation,⁸⁹ or an adult facility, where retribution and punishment are often the focus.⁹⁰ Such a decision undoubtedly will affect the direction of the juvenile's life.

If transferred to criminal court and sentenced to an adult facility, both the juvenile and society feel dramatic impacts. The juvenile's physical and emotional well-being will be greatly affected as he may be forced to spend time with adult prison offenders.⁹¹ Society feels the aftermath of the juvenile's adult confinement as, upon his return to society, the juvenile has become a harder, more violent ⁹² and recidivistic offender. Further, sentencing of juveniles to adult facilities offers no guarantee of a reduction in the juvenile crime rate, as stricter adult crime policies have not reduced the adult crime rate whatsoever; in fact, the adult crime rate has increased significantly.⁹³ The only effect harsher and stricter policies have provided the nation is a quadrupling in the number of persons imprisoned since 1980,⁹⁴ inordinate spending on the building of more prisons ⁹⁵ and a world-renowned reputation as the country with the highest rate of incarceration ⁹⁶ with a total prison population of 1.1 million.⁹⁷

Thus, a juvenile court judge's unbridled and unchecked decision to transfer a juvenile to an adult court that imposes adult commitment will only add to already overcrowded, overspent and overburdened adult system and institutions. It will return to society more violent offenders and result in in creased crime.⁹⁸

With statistics like those mentioned, it is obvious that change is necessary. While the juvenile system's adversaries argue for its complete abolition,⁹⁹

proponents argue for its reform.¹⁰⁰ Others argue for a restriction on the juvenile court judge's discretion in making the transfer decision.¹⁰¹ However, this will only push the juvenile problems off to the already overtaxed and ineffec tive adult system, with no guarantee of crime rate reduction in either area.¹⁰² Further, if it is remembered that the juvenile system's aim is to rehabilitate and treat the child,¹⁰³ the juvenile court judge's discretion should not be so limited that accomplishment of the system's goals is rendered impossible. Despite the juvenile system's aims, Ohio's new legislation reflects the trend toward the "get tough" philosophy on crime by restricting the discretion of the juvenile court judge in transfer decisions.¹⁰⁴

Ohio's New Juvenile Legislation

The Ohio Legislature has amended Ohio Revised Code section 2151.26 as a step toward reforming the juvenile system and to appease the public's out rage with juvenile crime.¹⁰⁵ This amendment imposes restraints on the

juvenile judge's current transfer power in two ways. First, it mandates juvenile transfer under more circumstances than the current statute.¹⁰⁶ Secondly, it imposes additional factors for a judge to consider that favor transfer of a juvenile to adult court.¹⁰⁷

The current mandatory transfer statute provides that a judge must transfer the juvenile to adult court after it finds probable cause exists to believe the child committed the act charged, and only when the child has a previous adjudication of an act constituting murder or aggravated murder if done by an adult.¹⁰⁸ The new amendment restricts not only the judge's discretion regard ing transfer based on the age of the juvenile offender,¹⁰⁹ but also limits the judge's discretion regarding the offenses for which the judge may decide transfer will occur. The effect of the new mandatory bind-over provisions on the Department of Youth Services ¹¹⁰ and the Department of Rehabilitation and Corrections ¹¹¹ has been analyzed, and suggests a substantial savings for the former and a moderate expenditure for the latter (assuming no additional facility space is necessary).¹¹² The mandatory transfer decision has its opponents ¹¹³ and supporters,¹¹⁴ but appears to indicate a step in the right direction as it removes the older, repeat violent offenders from the juvenile system.

The second restraint on the juvenile judge's power to transfer involves the discretionary or permissive bind-over procedures.¹¹⁵ The amendment requires a juvenile judge to continue to consider those factors enumerated in the current statute,¹¹⁶ but also specifies that if certain criteria exist, the judge must favor transfer of the juvenile to adult court.¹¹⁷ The enumerated criteria are not subjectively-based factors, such as those in Juvenile Rule 30,¹¹⁸ but are factors that are determined as objective facts.¹¹⁹ Thus, a juvenile court cannot hide its own subjectivity behind these criteria when a transfer decision is made, or the juvenile offender is kept within the juvenile system. The fiscal effect of this revision is minimal.¹²⁰

Another reform to the current juvenile statute worth mentioning is in the area of adult courts imposing sentences on juvenile offenders bound over to them. The current legislation allows for juveniles to be housed with adult offenders,¹²¹ while the new legislation mandates that the Department of Rehabilitation and Corrections separate those juveniles between the ages of fourteen and eighteen years from the adult population.¹²²

Juvenile System's Identity Crisis and Waste of Resources: Solutions

Ohio is making a great effort to work toward a solution to the juvenile system's identity and philosophy problems through this new legislation. It restricts judicial discretion in some respects,¹²³ but leaves discretion untouched in areas where it is most necessary.¹²⁴ Additional reform is necessary, especially in conserving juvenile treatment and resources for those on whom it works best.

Although experts have suggested many solutions to the problems of ineffective juvenile justice, from total abolition of the system ¹²⁵ to leaving the system as it is,¹²⁶ some court officials recognize that the system accomplishes its goals with those offenders it was intended to help, but fails the repeat violent offender who it was not designed to serve.¹²⁷ If the juvenile system continues to allow these repeat violent offenders to stay within its confines, it is only depleting its time, energy and resources, and neglecting those it was designed to serve; the first-time, nonviolent child that makes a mistake.¹²⁸

Based on the premise that the juvenile system was created to deal only with certain types of juvenile offenders, the best solution to reinstate the juvenile court's identity is to create a transitional system for the repeat violent juvenile offender.¹²⁹ This will remove the strain from the current juvenile system, yet still recognize and respect that the minor is a child and not a criminal.¹³⁰ However, Ohio's juvenile system, as that of most states, does not possess the extra funding to create such a system.¹³¹ Perhaps the money saved each year in the juvenile treatment and adjudication areas from the implementation of mandatory transfers could be applied toward the creation of the transitional system,¹³² which will still remain a part of the juvenile system, yet be separate and apart with its own court system and sentencing unit.¹³³

Juvenile justice is alive, well and starting to revive in Ohio. Ohio has begun the transformation of the juvenile court back to its original philosophy by providing for mandatory transfers in cases of serious repeat juvenile of fenders. Though it limits the discretion of juvenile judges, it also reflects the philosophy of the system that the juvenile court serves to protect and treat the child.¹³⁴ By limiting the discretion of the juvenile court in such situations, the new legislation is only recognizing what the first juvenile court recognized in 1899: that certain juvenile offenders were beyond its reach.¹³⁵ Perhaps the next step in Ohio juvenile law reform will be to provide a transitional system for those beyond the reach of the system.¹³⁶