Time Out for Transfer: Youth Transfer as Punishment

By Kristina Kersey

The confidentiality of the juvenile court, while laudable in protection of the children charged, often means that people, in general, have little understanding of the inner workings of the court. One of the opaquest practices in juvenile court is how, when, and under which circumstances youth are prosecuted as adults. The cases that do reach the headlines are the most salacious, which leads to a confirmation bias on both the need and the appropriateness of the practice of transfer. Many scholars have discussed the undeniable impact of adolescent development research on juvenile legal jurisprudence and a general reimaging of diminished culpability for youth with criminal offending behavior. The United States Supreme Court, through Roper v. Simmons and its progeny, has declared that youth under age eighteen will no longer face the death penalty or mandatory life in prison sentences, meaning that more individuals who were sentenced in criminal court as children to lengthy prison sentences and grew up in prison will return, decades later, to a changed world. This adoption of adolescent development research by the Supreme Court cases which addressed cruel and unusual punishment for youth has led to state legislative changes, driving campaigns around raising the minimum age of prosecution, against the use of solitary confinement and indiscriminate shackling, and amending procedures in police interrogation. This research has led to isolated changes in transfer practice, yet little attention has been dedicated to considering whether youth should be tried as adults full stop. Advocates that ground transfer abolition conversations in adolescent development have earned isolated and hard-fought victories on aspects such as minimum age, elimination of mandatory transfer, or enhanced due process protections in the process of transfer decisions. However, high profile cases involving youth offending behavior or perceived upticks in crime frequently place these victories in jeopardy of retrenchment to more permissive transfer practices. Regardless of the role that adolescent developmentshould play in significantly limiting or abolishing transfer, no state seems poised currently to end the practice entirely. And indeed, most scholars assume that some form of transfer must, should, or will continue to exist, likely because it always has existed.

Nevada Law Journal 6 Nev. L.J. 465 (2026).