Actual innocence research

Parens patriae? Automatic waiver to criminal court and its toll on youth and society

What is the impact on youth that are automatically transferred to adult court?

By Shari R. Kim, PhD

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One of the most consistent points made about wrongful convictions is that juveniles are at greater risk than adults. Where this trend is most clear is in the subset of wrongful convictions in which a false confession is present. For example, in their seminal study of 125 proven false confessors, Drizin and Leo (2004) report than more than one-third were younger than age 18. Our guest author this month discusses the case of Lacresha Murray who falsely confessed to killing a young child when she was only 11 years old. Despite her young age, Lacresha was tried (and wrongly convicted) in adult criminal court. This column focuses on the possible problems and effects of transferring juveniles to criminal court when innocent.

Our guest author this month is Shari Kim. Kim has just completed her postdoctoral fellowship at TrueNorth Wellness Services in York, Pennsylvania. She received her bachelor of arts in psychology from Goucher College, her master of science in developmental psychology from The Johns Hopkins University, and her doctor of philosophy in clinical psychology (with a concentration in forensic psychology) from Fielding Graduate University. Her primary research and clinical interests are addictions and juvenile justice, and her dissertation explored factors affecting violent recidivism in youth.

The juvenile justice system was designed to function under the doctrine of parens patriae, a doctrine adopted from English Common Law, which provides the legal system the authority to act on behalf of those unable do so for themselves. In practice, it is meant to treat children charged with crimes as the “children” of The Court. The Court is to act as the benevolent parent, acting in the best interest of the child without being overly harsh or overly lenient; children in the justice system are meant to be rehabilitated and not punished. Over the years, juvenile justice has gone through waves of harsher and more lenient methods of managing youthful offenders. The most serious penalty currently available in the United States for youthful offenders is transfer to criminal court, which is also known as waiver or certification.

Case Overview

Lacresha Murray was eleven when she was sentenced to 25 years for murder. In 1996 in Austin, Texas, she was accused of killing two-year-old Jayla Benton, a child who attended the home daycare run by Lacresha's family.

Jayla had appeared sick all day, and when Lacresha became concerned that something was very wrong, she brought Jayla to her grandfather. After looking at Jayla, Lacresha's grandfather decided it was time to take her to the hospital. Jayla died in the hospital, and Lacresha was brought in for questioning.

Lacresha was questioned for nearly three hours, without the presence of her parents or an attorney. She signed a confession presented to her by the police, with the assurance that she would be able to go back home. Lacresha, suffering from a learning disability, did not understand what she had signed or even the meaning of the word “homicide.” She was sent home around midnight, but was later taken into custody on murder charges.

After three years in prison, Lacresha was exonerated. It was discovered that the Medical Examiner had not weighed Jayla's body or investigated the many bruises and abrasions that covered her. Testifying for the defense, a former Dallas County Medical Examiner stated that Jayla had died during CPR, when the thin child's already broken rib ruptured her liver. The former Medical Examiner further noted that Jayla was malnourished and covered in healing and partially healed injuries, and that her death was the cause of long-term abuse and not the single blow from Lacresha alleged by the prosecution.

After Lacresha's exoneration, she was welcomed back into her community. After spending the first three years of her adolescence in prison, though, she did not quite know how to live in the community. She has struggled to find a place outside of the criminal justice system where she feels she fits, and has had a number of convictions as an adult. Being a child in an adult prison molded her, and we will never know who she might have been without that experience (Center on Wrongful Conviction of Youth, n.d.; Herbert, 1998; Hufnagel, E., 2010).

Problems with Waiver

The Innocence Problem

There is amassing evidence that youth are more likely to be convicted of crimes they did not commit than their adult counterparts. This problem is especially disturbing in cases of automatic waiver, because youth who may not even be guilty are sent automatically to the criminal system. During that period of time, youth waived by statute (meaning they are waived automatically because of the nature of the alleged offense) may be waiting in adult prisons for court hearings. This waiting period might be quite long. The median wait time in Pennsylvania in 2012, for example, was 88 days (Juvenile Court Judges Commission, 2013).

Children and adolescents are more likely to struggle with competence issues, such as not understanding their basic rights (including Miranda rights), not knowing how to assist their attorneys, and being more susceptible to psychologically oriented interrogation practices (Drizin & Luloff, 2007; Gould, Carrano, Leo, & Hail-Jares, 2014; Streib, 2010; Tepfer, Nirider, Tricarico, 2010). Famously, there has been a case in which youth were intentionally wrongfully convicted, so the judge could receive kickbacks from the detention facility to which youths were sent (Streib, 2010). In the Lacresha Murray case, we see an example of a child who simply wanted to go home and thought confessing falsely would help that to happen. In one comparison of adult and youth exonerees, youth were nearly twice as likely to confess falsely, with the rate of false confessions increasing as the youth's age decreased (Tepfer et al., 2010).
The Effectiveness Problem

One main justification for waivers is as a deterrent. Prevent recidivism is predicated on the idea that it will deter those who have had contact with the system (based on the idea that they will want to not return) and also deter others (for fear of being placed in the adult system) (Centers for Disease Control and Prevention, 2007). The research, however, provides a different picture. In a Florida study of 315 pairs of juvenile offenders, matched for seriousness of offense, those waived to criminal court were more likely to recidivate upon their release (49.3% versus 35.4% of those retained in the juvenile system). There was also evidence that those housed in the adult system were more likely to have behavior problems in the facility, such as running away (Lanza-Kanduce, Frazier, & Lane, 2002). Other studies have revealed similar findings, with those waived to criminal court being 26-77% more likely to engage in violent recidivism. That likelihood was even higher for those serving longer sentences. Waived juveniles were also more likely to engage in nonviolent recidivism (CDC, 2007). Redding (2010) notes that waiver can only be a deterrent to crime in general if youth are aware that it is possible. He further notes that the evidence of its being a deterrent for recidivism is inconsistent, with violent recidivism common among waiver cases. Although not all youth might benefit from treatment in the juvenile system, it is clear that invoking the waiver option should be based on risk of future violence, community safety, and individual safety, rather than solely on the offense alleged to have been committed (CDC, 2007; Fuentez, 2010). Automatic waiver is especially concerning, considering the youth involved may not even be guilty of the offense. We then see a case like Lacresha Murray's, where an innocent youth was transformed into an actual offender. Although we can never be sure that Lacresha's waiver and wrongful conviction was the direct cause, the research on the effects of waivers is telling.

Suggestions for Future Research

The research on juveniles and wrongful convictions is surprisingly scant. Some useful future research questions would be:

  • Is there a difference in the likelihood of a youth being wrongly convicted in juvenile court versus criminal court?
  • Is there a significant difference in the way youth and adults are treated in the criminal court system when guilty and when innocent?
  • What factors increase the likelihood of innocent youth being wrongfully convicted in the criminal system or youth in the courts in general?


Waiver is flawed, but necessary in some cases. One major problem is that automatic waiver does not allow for the consideration of individual differences among youth before penalties are imposed. Indeed, youth often do not see a judge before being sent to prison and, in the case of Lacresha Murray and others like her, the youth may not even be guilty. Although waiver standards vary from state to state, the overall methods for waiving a juvenile case to criminal court are the same. Therefore, the psycho-legal question remains the same – is the youth amenable to treatment, not a threat to public safety, and not a threat to the safety of other youth in the juvenile justice system? When the juvenile is innocent, the answers to these questions are most likely ‘no.'


Center on Wrongful Convictions of Youth. (n.d.). Meet the exonerees: Lacresha Murray . Retrieved from

Centers for Disease Control and Prevention. (2007). Effects on violence of laws and policies facilitating the transfer of youth from the juvenile to the adult justice system: A report on recommendations of the task force on community preventive services . Washington, DC: U.S. Government Printing Office.

Drizin, S. A., & Leo, R. A. (2004). The problem of false confessions in the post-DNA world. North Carolina Law Review, 82 , 891-1007.

Drizin, S. A., & Luloff, G. (2007). Are juvenile courts a breeding ground for wrongful convictions? Northern Kentucky Law Review, 34 , 247-322.

Gould, J. B., Carrano, J., Leo, R. A., & Hall-Jares, K. (2014). Predicting erroneous convictions. Iowa Law Review, 99, 471-522.

Herbert, B. (1998, November 19). In America: How did Jayla die? The New York Times . Retrieved from

Hufnagel, E. (Producer). (2010, August 30). KXAN investigates [Television broadcast]. Austin, TX: LIN Television of Texas.

Juvenile Court Judges Commission. (2013). 2012 Pennsylvania juvenile court dispositions. Shippensburg, PA: Shippensburg University. Retrieved from

Lanza-Kanduce, L., Frazier, C. E., & Lane, J. (2002). Juvenile transfer to criminal court study: Final report . Tallahassee: Florida Department of Juvenile Justice.

Redding, R. E. (2010 June). Juvenile transfer laws: An effective deterrent to delinquency? Juvenile Justice Bulletin . Washington, DC: Office of Juvenile Justice and Delinquency Prevention.

Streib, V. (2010). Intentional wrongful convictions of children. Chicago-Kent Law Review, 85 , 163-177.

Tepfer, J. A., Nirider, L. H., & Tricarico, L. M. (2010). Arresting development: Convictions of innocent youth. Rutgers Law Review, 62 , 887-936.