The 1980s saw a huge shift in the way states and federal laws were addressing juvenile law. Gangs, gun violence, and drugs drew attention to the identification, punishment, and prevention of violent and chronic youth offenders. The Office of Juvenile Justice and Delinquency Prevention (OJJDP) focused research on youth violence and state and local programming. Attention focused on identifying and controlling serious, violent, and chronic offenders.

At the state level, lawmakers enacted policies to crack down on youth crime. In the mid-1990s, the idea of the juvenile superpredator, youth so impulsively violent, remorseless, and without respect for human life, led to widespread reform and more punitive approaches to juvenile crime and delinquency. This included more punitive sentences, lowering the age at which a juvenile could be tried as an adult, and loosening the provisions for trying juveniles in adult court. The motto “adult time for adult crime” drove accountability initiatives and get-tough campaigns. A youth was no longer seen as vulnerable minors needing protection and treatment. Instead, the narrative changed, and they were seen as violent monsters acting “with no conscience and no empathy,” a statement Hillary Clinton has publicly regretted saying.

10.6.1 Waiver and Adult Time

All states have enacted laws that allow juveniles to be tried in adult criminal courts. There are several mechanisms by which a juvenile can be transferred to adult criminal court: prosecutorial, legislative, and judicial waiver. The prosecutorial waiver also is referred to as “Direct File” and “Concurrent Jurisdiction.” With this waiver mechanism, the legislature grants a prosecutor the discretion to determine which court to file charges against the juvenile. The prosecutor or district attorney can choose to file charges in juvenile or adult criminal court. This procedure does not require a transfer hearing, so the defense is not allowed to present evidence to avoid the transfer (Feld, 2001).

Legislative waiver, or statutory waiver, identifies certain offenses mandated by state law to be excluded from juvenile court jurisdiction. It is utilized to decrease or eliminate the discretionary powers of judges and prosecutors. For example, the number of state statutes specifies that violent felony offenses such as homicide, rape, and robbery, when committed by older adolescents, are automatically sent to adult criminal court.

Judicial waiver allows the juvenile court judge to transfer a case to adult criminal court (Steiner et al., 2006). There are three types of judicial waiver: discretionary, presumptive, and mandatory.

The discretionary (regular) waiver allows a judge to transfer a juvenile from juvenile court to adult criminal court (Hemmens & Bell, 2006). With this type of transfer, the burden of proof rests with the state, and the prosecutor must confirm that the juvenile is not amenable to treatment. As discussed previously, in Kent v. United States (383 U.S. 541, 566–67 [1966]), the Supreme Court outlined threshold criteria that must be met before a court can consider waiving a case. These waiver statutes typically include a minimum age, the specified type of offense, a sufficiently serious prior record, or a combination of the three.

Presumptive waiver shifts the burden of proof from the State to the defendant. It is presumptive because it is presumed that it will occur unless the youth can meet the burden of proof and provide a justifiable reason to remain in juvenile court. If the youth cannot show just cause or sufficient reason why the case should be tried in juvenile court, the case will be transferred and tried in adult court.

The third type of judicial waiver is a mandatory waiver. Mandatory waiver means that a juvenile judge must automatically transfer to adult court juvenile offenders who meet certain criteria, such as age and current offense. In these cases, the role of the judge is simply to confirm that the waiver criteria are met and then to transfer the case to adult court. Mandatory waiver removes all discretionary powers from the juvenile court judge in transfer proceedings (Sanborn, 2014).

State juvenile courts with delinquency jurisdiction handle cases in which juveniles are accused of acts that would be crimes if adults committed them. In 45 states, the maximum age of juvenile court jurisdiction is age 17. Five states—-Georgia, Michigan, Missouri, Texas, and Wisconsin—now draw the juvenile/adult line at age 16. However, all states have transfer laws that allow or require young offenders to be prosecuted as adults for more serious offenses, regardless of age.

In addition to increasing transfer mechanisms, at least 13 states lowered the age of majority to 15, 16, and 17, which allowed the youth of these ages to be automatically tried in adult criminal courts. These were supposed to provide procedures that curbed only the worst of the worst offenders. However, these provisions increased the prosecution of all juvenile offenders and youth of color in particular (Burke, 2015).

10.6.2 Superpredator and Discriminatory Practices

As mentioned before, the term “superpredator” was associated with those considered so violent and remorseless as to be not amenable to treatment. Said another way, superpredators were youth who could not be rehabilitated. John J. DiIulio Jr. a political science professor at Princeton University, first proposed the idea of the superpredator theory. He argued that America in the 1990s faced a growing generation of violent youth—kids that had no regard for human life. Tapping into the country’s long history of systemic racism and racialized fear, he posited that the superpredators would be disproportionately youth of color, specifically Black teenage males (Forman & Vinson, 2022).

America’s criminalization of Black youth can be seen in transfer or waiver legislation that allows youth to be tried as adults and the overly harsh sentences youth received in the 1990s. These reflect a notion of “othering” youth of color and allows society to fear and control them. The concept of “othering” is a way for society to distance themselves, and labeling youth as “super predators” or monsters means that they are not like our children—they are other, vile, and violent.

While the notion of the superpredator has been debunked, even by Dr. DiIulio himself, the harm it caused to the lives of children and the families of those children is very real. It incited moral panic based on faulty and flawed logic and forecasting.