What Are Discretionary and Reverse Waivers?

What Are Discretionary and Reverse Waivers?When a juvenile is charged with a crime in Tennessee, the court has the power to decide whether they will be tried for their crime in juvenile or adult court. The state bases their decision on a variety of factors, and can grant a waiver transferring a juvenile’s case over to adult criminal court.

These waivers can be either discretionary or reverse, and if your child is facing criminal charges, it’s crucial you understand how they work.

What factors determine whether a juvenile will be tried as an adult?

Let’s say that you are the parent of a juvenile accused of committing a serious offense, like aggravated assault or robbery. What factors determine in which court your juvenile’s offense will be tried?

In America, 46 states grant juvenile courts the option of waiving, or transferring, their jurisdiction over a juvenile’s case to an adult criminal court. In Tennessee, the decision to waive the juvenile’s offense and try the juvenile in an adult criminal court is dependent on the judge and not the defendant.

After the 1966 U.S. Supreme Court ruling in Kent v. the United States, juveniles were granted due process legal rights in court proceedings. Because of the ruling, there are now specific guidelines that many juvenile courts still follow while deciding to file a discretionary waiver. Some of these guidelines include a minimum age for the juvenile to be subject to a waiver, a specific type or level of offense, and history of the juvenile’s previous delinquency. Some states consider all three of these factors when making their decision.

What is a discretionary waiver?

A discretionary waiver is one the juvenile courts use to waive their jurisdiction over to the adult criminal court. This waiver grants the judge in a juvenile court some discretion when deciding whether a juvenile’s offense should be transferred. With a discretionary waiver, the state is responsible for presenting the burden of proof; and must show a preponderance of evidence. This preponderance of the evidence must be credible enough to point more towards the possibility than not that the juvenile committed the offense.

When are discretionary waivers used?

For a discretionary waiver to be considered, there must be specific criteria for a juvenile’s offense to be transferred to adult criminal court. Many courts must decide to issue a discretionary waiver with both the child’s best interest and the public in mind. Upon filing of a discretionary waiver, the juvenile court no longer has jurisdiction over the case.

What is a reverse waiver?

Your child is eligible for a reverse waiver if you live in a state that practices statutory exclusion or concurrent jurisdiction. This allows a juvenile’s representative to petition the adult court for the case to be transferred back to juvenile court. Some of the factors used by the juvenile courts to determine whether to grant this type of waiver include the seriousness of the offense, your juvenile’s age, criminal history, and any other factors that can determine whether your juvenile can be rehabilitated.

For example, suppose your child is a good student with no previous criminal history. In that case, an attorney may be able to argue that rehabilitation is the best course of action for your juvenile instead of trying them as an adult. Unlike the juvenile court system, the adult legal system is more concerned with punishment than rehabilitation, even for minors. The juvenile court system gives juveniles a better chance for rehabilitation and a better future.

Additional types of juvenile court waivers

In addition to a discretionary waiver, there are several transfer guidelines a judge may use to determine whether a juvenile’s offense should be tried in adult criminal court or juvenile court. One of the guidelines includes a statutory exclusion guideline, where state law prohibits some classes of cases from juvenile court.

These classes of cases usually include offenses of a more serious nature, like first-degree murder, sexual assault, drug trafficking, robbery, and firearms charges. If your juvenile has been charged with one of these serious offenses, it will be transferred to adult criminal court.

Another transfer guideline for juvenile offenses includes a direct file guideline. A direct file guideline is also known as “prosecutorial discretion.” This grants prosecutors the power to determine whether a juvenile’s offense should be tried in adult criminal court. What makes a direct file guideline unique is that the prosecutors don’t have to meet the due process requirement for juveniles.

Another transfer includes the “once an adult, always an adult” guideline. Under this guideline, your juvenile can be tried in adult criminal court for any consecutive offenses if he or she has previously been tried as an adult in the past.

What is concurrent jurisdiction?

Concurrent jurisdiction is a legal provision some states follow that allows the prosecutor to try your juvenile’s offense in either adult criminal court or juvenile court. This legal provision is allowed when the juvenile’s offense and the age of the juvenile meet certain criteria. This provision is controversial in many states, however, under the theory that a prosecutor cannot remain a neutral party. Because of this issue, most states opt to have a judge decide or execute statutory exclusion. Tennessee does practice concurrent jurisdiction.

The juvenile crime defense attorneys at The Law Offices of Adrian H. Altshuler & Associates serve Franklin, Columbia, and Brentwood. If your child faces an adjudication hearing for a juvenile offense, we have the knowledge and experience to represent your child’s best interests. Call us today at 615-977-9370, or complete our convenient contact form to schedule an initial consultation.