Middlesex and Passaic counties have the highest rates statewide of prosecuting children as adults in New Jersey. (Dana DiFilippo | New Jersey Monitor)
County prosecutors in New Jersey play an outsized role in whether children accused of serious crimes get tried as adults, with juveniles facing potentially vastly different sentences and treatment depending on where they’re prosecuted, according to a new report by Human Rights Watch.
Many states, including New Jersey, require a judicial waiver for a child to be tried as an adult, and under that system, judges weigh evidence presented by both sides before deciding whether a case belongs in juvenile or adult court.
But New Jersey’s waiver statute “sidelines judicial oversight” by giving so much discretion and power to prosecutors that they essentially call the shots, according to Amanda Leavell, a Human Rights Watch researcher who authored the report.
That has created a “justice by geography effect,” Leavell said. Middlesex and Passaic counties have the highest youth waiver rates statewide, with Passaic’s rate seven times higher than nearby Union County, Leavell found.
“Your fate is basically completely dependent on how harshly the prosecutor is going to pursue your case,” she said.
Black youth also get disproportionately waived to the adult system, Leavell found, perpetuating racial disparities in a prison system that already has among the highest racial disparities in the nation.
When juveniles get waived to adult court, they move to a system that prioritizes punishment over rehabilitation and into adult prisons where they face higher risks of violence, trauma, and recidivism, causing lifelong harm, Leavell added. She found they also languish in pretrial detention longer because of lengthy hearings and the reset of trial timelines triggered by their transfer to adult court.
New Jersey’s waiver statute applies to juveniles aged 15 to 17 who are accused of homicide, sexual assault, certain drug or firearm-related crimes, and several other serious crimes.
Leavell made more than 20 recommendations for changes to legislators, county prosecutors, the Attorney General’s Office, the Juvenile Justice Commission, and more.
She urged lawmakers to pass legislation that would reduce and ultimately end the prosecution of children in adult court. Until then, lawmakers should restore and strengthen judicial oversight of waiver motions and pass legislation that would require hearings in which prosecutors who want to try a child in adult court must prove that child could not be rehabilitated in the juvenile system, she recommended.
She also urged the state attorney general to review and assume decision-making authority over waiver requests in counties that send youth into the adult system at significantly higher rates than other counties. She thinks the attorney general should issue statewide guidelines that ensure waiver decisions are uniformly applied across counties and emphasize prosecution in the juvenile justice system as the default approach.
The attorney general and Juvenile Justice Commission should publicly report on juvenile waivers, as they are required by law to do every two years, on a more timely basis and include demographic information, charges, case outcomes, and other details, she added. Those agencies’ most recent report — posted online Tuesday, the same day Leavell issued her report — was a half-year late. The data in the biennial reports is also several years old; this week’s report examines juvenile waivers in 2020 and 2021.
Tara Oliver, a spokeswoman at the Attorney General’s Office, said they will review the report’s findings.
“Our office is committed to ensuring public safety while also treating people fairly. This is what we have done for two decades across administrations,” she said in a statement.
Leavell also called on county prosecutors to seek waivers to adult court only as a last resort, considering a youth’s developmental capacity, trauma history, disability status, and potential for rehabilitation. Prosecutors and judges should undergo regular training on adolescent brain development and the effects of trauma on youth, she added.
Middlesex County Prosecutor Yolanda Ciccone, who heads the County Prosecutors Association of New Jersey, did not respond to a request for comment.
Former New Jersey Supreme Court Justice Barry Albin applauded the findings, saying uniformity in any system is important.
“It is a basic concept of justice that similarly situated people should be treated the same,” Albin said in a statement. “One problem with having prosecutors be the primary decision-maker in waiver cases is a lack of uniformity across the state. You have 21 counties and 21 prosecutors, and they may have 21 different philosophies about how to prosecute waiver cases.”
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