Evolution of the Juvenile Justice System: Waiver Process


According to the Collins English Dictionary, a juvenile delinquent in law is “a child or young person guilty of some offense, act of vandalism, or antisocial behavior or whose conduct is beyond parental control and who may be brought before a juvenile court”. An individual less than eighteen years old is found to have engaged in a crime in those countries which have categorically stated that if a minor lacks responsibility should not be subjected to the same sentence just as an adult. Despite the age for this sentence being set at eighteen years, other countries have however set the age to as less as fourteen years for those who repeat the crime they initially get involved in.

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History and Evolution of the Juvenile Justice System

At the start of the 19th century, delinquent neglected and runaway children in the United States were treated in the same way as adult offenders (Rosenheim, 2002). Just like the adult’s children received the same punishments as adults and no juvenile courts existed at that time. In the mid 19th century, some legislation to humanize children’s justice process was introduced but at that time no special facilities to cater for the children in trouble with the law existed (Larry & Brandon, 2010).

Later on, the uprise of various movements such as the child saving movement and the growing concepts of urbanization and parent Patria coupled with the establishment of institutions to cater for neglected children and delinquents saw the birth of juvenile delinquency justice (Larry & Brandon, 2010). In a bid to try and reform the system the United States children’s bureau was formed as the 1st children’s welfare agency (Rosenheim, 2002). The bureau started to conduct investigations on the state of various juvenile institutions and exposed the internal repressive natures of those institutions (Larry & Brandon, 2010). Francis Allen and Tappan Paul’s renowned critics initiated the identification of the core problems in juvenile criminal justice, where they pinpointed warehousing of youth and negligence of the procedural rights as key issues which affected children’s justice affairs (Larry & Brandon, 2010). They observed those status offenders were placed together with delinquents and also given extraneous punishment (Larry & Brandon, 2010).

From its inception, the juvenile court denied the children their procedural rights which were at the adult’s disposal (Larry & Brandon, 2010). Due process rights for example is represented by a counsel, a fair trial, freedom from self-incrimination, from unreasonable search and seizure were not considered at all in the juvenile courts since its major intention was not to punish but rehabilitate (Larry & Brandon, 2010).

Major reforms took shape in the 1960s which greatly changed the face of juvenile delinquency (Larry & Brandon, 2010). New York passed legislation creating family court systems (Larry & Brandon, 2010). The courts also established the persons in need of supervision and children in need of supervision concepts to run the judicial process on children (Rosenheim, 2002). By then many noncriminal children started to flood the courts and so there was a need to start establishing social services in juvenile justice (Larry & Brandon, 2010). Great efforts were done to establish the personalization of the system and other reforms soon came in such as the due process revolution which saw the birth of the era of procedural rights for court adjudicated youths (Larry & Brandon, 2010).

Waiver Process

The waiver process was formulated with an aim of removing serious offenders from the juvenile process and getting them to be handled by the more punitive adult systems (Larry & Brandon, 2010). This process takes place when a hearing involving a child is placed before a juvenile court judge, who then makes a decision as to whether jurisdiction should be waived and the case to be transferred into a criminal court (Larry & Brandon, 2010). Many states of the United States of America practice this concept (Larry & Brandon, 2010).

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What leads to the transfer is determined by the procedures laid by the state statute. Certain federal States that have amended this waiver now exclude certain serious offenses from juvenile court jurisdiction (Larry & Brandon, 2010). According to the judicial proceedings between people v. Lara in California, the court stated that the question of a child’s waiver is to be determined by the doctrine of ‘totality of the circumstances’ (Larry & Brandon, 2010). This implies that the waiver is determined not only in the child’s age but also a combination of other factors such as the child’s knowledge, the child’s education, whether the child was allowed to consult with family and friends and the method of interrogations (Larry & Brandon, 2010). The need to exclude serious violent offenses from juvenile courts jurisdiction has grown in bringing forth the demand of getting tougher on crime (Larry & Brandon, 2010). This has seen a trend whereby youth under the age of 18 years are being tried as adults in states where the upper age of juvenile court jurisdiction is up to 16 years old (Larry & Brandon, 2010).

Potential Consequences of the Waiver Process Trend to the Child and To Society

Most of the experts who engage in the juvenile justice systems really oppose waiver because it is in contradiction with the rehabilitative ideas (Larry & Brandon, 2010). Tagging waiver decisions to the type and seriousness of the offenses rather than on the rehabilitative needs for the minors creates the criminalizing of the juvenile courts and interferes with its traditional mission of treatment and rehabilitation (Larry & Brandon, 2010). Critics also indicate that waivers do not always support the goal of increased public protection, because many of the minors who are arrested and poisoned might not complete their full prison term unlike if their issues were just handled in the juvenile criminal court circles (Larry & Brandon, 2010).

According to Rosenheim (2002), “the recent decreases in their prevalence serious and violent juvenile offenders remain a troubling social problem but existing empirical evidence reveals that it is not appropriate to effect a transfer or a waiver to such offenders to adults courts and that risk-focused prevention is a more effective and cost-effective method of reducing their numbers” (Rosenheim, 2002).


It is not yet late to do away with the waiver process because in recent years there has been an increase in the number of minors who have been transferred to the adult courts but studies suggest that juveniles in these adult courts usually receive severe sanctions but in return, there is a high recidivism rate. Juveniles also are more likely to be wrongly victimized in adult correctional facilities than when they are left in juvenile facilities (Rosenheim, 2002).


Collins English Dictionary. (2003). Complete and Unabridged. USA: HarperCollins Publishers.

Larry J. and Brandon C. (2010). Juvenile Delinquency: The Core. USA: Cengage Learning.

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Rosenheim, K. (2002). A century of juvenile justice. USA: University of Chicago Press.

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