Just two of New Jersey's 21 counties — Passaic and Middlesex — accounted for nearly half of all cases waived out of juvenile court since 2018, according to the report, "Kids You Throw Away: New Jersey's Indiscriminate Prosecution of Children as Adults."
Although New Jersey law in theory gives judges the final say on how juveniles are charged, in reality prosecutors hold that power, according to the report. Judges can only overturn a prosecutor's decision if they find a prosecutor has abused their discretion, which is a nearly impossible standard to meet, the report said.
Because each county has its own prosecutor's office, the result, according to Leavell, is a system where the future of a juvenile can vary wildly based on the decisions of their local prosecutor, with no real opportunity for the judiciary to weigh in.
A prosecutor's decision whether to "waive" a defendant out of juvenile court and into the adult justice system is "just about one of the single most consequential decisions the state can make about a child," Leavell said.
"In New Jersey it's basically unilaterally decided by prosecutors," she added, "and that leads to a lot of stark racial and geographic disparities in the outcomes of these waiver decisions."
Not every youth criminal case is eligible for a waiver, and Leavell said the cases that are waived are a minority. New Jersey law allows prosecutors to seek a waiver only in cases in which a youth is over the age of 15 and charged with offenses including homicide, sexual assault and some drug and firearms-related crimes, among others.
Leavell's report highlighted the case study of two youths, "Mikey" and "Jaime," who were charged with murder at the age of 17 in Atlantic and Hudson counties, respectively, to illustrate the difference something as simple as one's home county can make.
Atlantic County prosecutors waived Mikey's case to adult court after he had spent four years in pretrial detention, and now in prison, Mikey spends 22 hours per day locked in his cell, Leavell wrote. Jamie, meanwhile, did not have his Hudson County case waived into adult court, and in youth prison he has the opportunity to see a social worker, work, eat meals in a mess hall with others, and attend mental health and drug counseling programs, according to Leavell's report.
An "overwhelming body of evidence" shows that prosecuting children in adult court increases their likelihood of committing a crime again in the future, Liz Ryan, a former administrator for the federal Office of Juvenile Justice and Delinquency Prevention in the Biden administration, said in an interview with Law360 Pulse.
Young people are at the highest risk of assault and abuse while in adult prisons, and when they are released the stigma of an adult conviction follows them and is an obstacle to finding housing, education and employment, Ryan said.
"The whole point of the juvenile justice system was to give young people a second chance, and that just doesn't happen when you place them in the adult criminal justice system," Ryan said.
In New Jersey specifically, one major issue facing youths whose cases are waived to adult court is the long wait in pretrial detention — which in some cases can go on for years — until their waiver hearings, Leavell wrote. Youths accused of crimes can spend years in detention facilities that are intended only for short stays.
"If a child is 15 or 16, that's four really formative years of your life that instead of being able to receive quality access to education or maybe therapy or support, things that could really help the child, instead, they're wasting away in detention," Leavell said.
Former New Jersey Supreme Court Justice Barry Albin told Law360 Pulse that when he practiced criminal defense law 30 years ago, defense attorneys had the opportunity to show that rehabilitation was possible for their clients and that they belonged in the juvenile justice system, and judges made the final decision.
Decades of tough-on-crime policies have shifted the balance of power from judges to prosecutors, Albin said, and de-emphasized the value of rehabilitation in New Jersey's criminal system.
"One of the questions is whether or not under our system we want to give more expansive consideration to the ability to rehabilitate juveniles, or consign them to the adult system, where those services are not going to be available," Albin said.
In her report, Leavell proposed avenues for change. International law calls on all children under age 18 at the time of their offense to be prosecuted in a dedicated child court, and Human Rights Watch's position is that New Jersey's waiver system should be abolished entirely.
Short of that, the report called on the New Jersey Legislature to pass and the governor to enact legislation that would give judges the authority to determine a youth's eligibility for the youth justice system. She also called on the state Office of the Attorney General to issue statewide guidelines on the use of the waiver system, with an emphasis on keeping juvenile defendants in youth court.
Representatives of the Passaic and Middlesex county prosecutors' offices did not immediately respond to requests for comment. In a statement provided to Law360 Pulse, the Office of the Attorney General said it "is committed to ensuring public safety while also treating people fairly, which is what New Jersey has done for two decades across administrations."
"We will review the report's findings," the statement read.
A representative for the New Jersey judiciary did not immediately respond to a request for comment on the report.
Leavell maintained to Law360 Pulse that removing the waiver system is the ultimate goal, but until then, returning more authority to judges is a way to add more balance back to the decision of where to handle a youth's criminal case.
"If you're not going to abide by international human rights standards, then at least make the decision one that's fair," Leavell said, "because justice shouldn't depend on the prosecutor's ZIP code."
--Graphics by Ben Jay. Editing by Rich Mills.
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