Race, youth violence, and the changing jurisprudence of waiver

This article analyzes the legal history and jurisprudential theory of legislative offense-exclusion and prosecutorial waiver laws over the past quarter-century. Initially concerns about racial discrimination and civil rights motivated the Supreme Court in Kent v. United States to require due process in judicial waiver hearings. Offense-exclusion and "direct file" laws evolved and expanded in direct reaction to Kent as lawmakers sought simple and expedient alternatives to judicial waiver hearings. The "just deserts" sentencing movement of the 1970s, which advocated determinate and presumptive offense-based sentences, provided a conceptual alternative to judicial discretion and a jurisprudential rationale for offense exclusion laws. Research on delinquent and criminal careers in the 1970s, which initially promised empirically grounded selective incapacitation sentencing strategies, provided another conceptual foundation for offense-based waiver laws that focused on youths' prior records. Finally, offense exclusion provided a politically attractive strategy for "get tough" public officials who proposed to "crack down" on "baby boom" increases in youth crime. The jurisprudential shift in sentencing emphases from considerations of the offender to characteristics of the offense relocated waiver and sentencing discretion from judges to prosecutors. By the early 1990s, as a result of political "crack-downs" on youth crime, the scope of excluded offense legislation increased substantially, became overly inclusive and excessively rigid, and exhibited many of the negative features associated with mandatory sentencing laws.