The decision to waive a child to an adult criminal court to prosecute alleged criminal charges has enormous consequences. First, the protection of a sentencing cap is no longer available. In other words, the most severe sentence in a juvenile criminal case, incarceration for an indefinite period not to exceed the juvenile’s Twenty-First birthday, is no longer the worst-case scenario. Once the child is waived to adult court, the sentence if convicted will be in line with the statutory sentence for the particular offense. Additionally, the underlying goal changes from the rehabilitation of, and assistance to, the juvenile to harsh prison sentences and even mandatory minimum prison sentences.
In South Carolina, the prosecutor initiates the waiver process by filing a motion to transfer jurisdiction and waive the child to adult criminal court. When a child is charged in South Carolina with murder or with criminal sexual conduct, Section 63-19-1210, Code of Laws of South Carolina, 1976, amended, requires the prosecutor to file the motion within thirty days after filing the petition in the case. If the motion is denied, the prosecutor has five days to appeal the decision to the circuit court. The circuit court judge who hears the appeal has the discretion to retain jurisdiction in general sessions or relinquish jurisdiction to the family court pursuant to § 63-19-1210, Code of Laws of South Carolina, 1976, amended.
Also, Section 16-3-659, Code of Laws of South Carolina, 1976, amended, prohibits a child under the age of fourteen from being waived to adult criminal court on a charge of criminal sexual conduct. Slocumb v. State, 522 S.E.2nd 809 (SC 1999) (“The common law rule is that a boy under fourteen years is conclusively presumed to be incapable of committing the crime of rape).
ELIGIBILITY FOR WAIVER
The family court judge can waive a child to an adult criminal court when:
- a child of any age is charged with murder;
- a child seventeen years of age or older is charged with an offense which, if committed by an adult, would be a misdemeanor, a Class E or F felony as defined in Section 16-1-20, or a felony which provides for a maximum term of imprisonment of ten years or less, after full investigation;
- a child fourteen, fifteen, or sixteen years of age is charged with an offense which, if committed by an adult, would be a Class A, B, C, or D felony as defined in Section 16-1-20 or a felony which provides for a maximum term of imprisonment of fifteen years or more, after full investigation and hearing;
- a child fourteen years of age or older is charged with a violation of Section 16-23-430 (Possession of a Weapon on School Property), Section 16-23-20 (Unlawful Carrying of a Firearm), or Section 44-53-445 (Distribution of Drugs in Close Proximity of a School), after full investigation and hearing;
- a child fourteen years of age or older is charged with an offense which, if committed by an adult, provides for a term of imprisonment of ten years or more and the child previously has been adjudicated delinquent in family court or convicted in the circuit court for two prior offenses which, if committed by an adult, provide for a term of imprisonment of ten years or more, after full investigation and hearing.
Prior to the waiver hearing, a Pre-Waiver Evaluation Report is prepared. The Pre-Waiver Evaluation Report contains two parts.
The first part of the report, completed by a community specialist, contains the child’s social history, family information, physical description, school history, medical history, court, and social agencies history, and information about the home and community adjustments.
The second part, completed by a Department of Juvenile Justice psychologist, contains a referral statement, sources of information, a mental status examination, a psychological summary, and conclusions.
At the waiver hearing, the court uses the report information, together with witness testimony and other evidence presented by the state and defense, to determine whether the child will be waived to adult criminal court.
In Kent v. United States, 383 U.S. 541 (1966), the U.S. Supreme Court established the requirement of a full report of a child who the state intends to waive to adult criminal court. Additionally, the Court established the following eight factors to consider when deciding whether to waive a child to adult criminal court.
- The seriousness of the offense and whether waiver is necessary to protect the public;
- Whether the nature of the child’s acts were aggressive, violent, or willful in nature;
- Whether the child’s alleged offenses were against persons or property;
- Whether there is sufficient evidence for an Indictment;
- The existence of an adult co-defendant that makes it desirable to present the entire case in one court;
- The child’s sophistication and maturity;
- Prior criminal record; and
- Whether the public is adequately protected considering the child’s reasonable rehabilitation using the services available to the court.
The prosecutor has the burden of proof in the hearing and enters
witness testimony and the evaluation report into evidence. Also, hearsay is permissible in a waiver hearing. The defense is then permitted to present witnesses and evidence in support of treating the child as a child, as opposed to being prosecuted as an adult. The decision to transfer jurisdiction lies within the discretion of the family court. Id., State v. Pittman, 373 S.C. 527, 647 S.E.2d 144, (2007)
In the event that the court rules that the child is waived to adult criminal court, an order must be issued sufficiently stating the reasons for the decision and containing language showing that “the statutory requirement of a full investigation has been met and that the question has received full and careful consideration by the family court,” as required by State v. Avery, 509 S.E.2d 476, 481 (S.C. 1998).