Race, Recidivism, and Prosecutorial Discretion in Juvenile Transfer Cases in Virginia

From the Abstract:

Juvenile transfer laws—laws allowing the transfer of juvenile offenders from juvenile to adult criminal courts—were established during the “tough on crime” era amidst fears of juvenile “superpredators” with the purported goal of improving public safety by reducing recidivism rates. However, the practice of juvenile transfer has been shown to not only increase, rather than decrease, recidivism rates, but also to result in a disproportionate number of children of color being placed in adult carceral institutions. This article examines juvenile transfer practices in Virginia in light of recent amendments to relevant laws seeking to address these problems. In Virginia, like many other jurisdictions, transferred juvenile defendants tend to remain in the criminal justice system longer and have higher recidivism rates. Moreover, Black children have been transferred to adult criminal courts and carceral facilities at disproportionately high rates in the state. 2020 amendments to Virginia’s juvenile transfer laws were intended to address these issues and racial disparities, most notably by increasing the minimum age a juvenile could be tried as an adult from fourteen to sixteen and thereby reducing the zone of discretionary decision-making among prosecutors and judges. Through an examination of the history of juvenile trans fer laws in Virginia, current juvenile transfer processes, and the problems such processes pose, this article argues that recent amendments to laws governing Virginia’s juvenile transfer process do not go far enough to protect children, especially children of color. More specifically, it argues that these amendments continue to provide prosecutors with excessive discretion in determining which children to prosecute as adults. Among other things, this continuing high degree of discretion risks perpetuating the racially disproportionate nature of Virginia’s juvenile transfer system to the detriment of children of color, especially Black children. While abolition of juvenile transfer laws represents the most direct way of dealing with these issues, it is unlikely that there will be necessary political support to abolish all juvenile transfers in the near-term. In light of these realities, this article identifies additional changes that could improve Virginia’s juvenile criminal justice practices in the near term.