Although ATC folks disagree on how to construct the narrowest scope of possible transfer targets, there is unanimity that the only permissible method is JT. The explanation is that judges are less likely to transfer than are prosecutors. The one divide is how JT should operate.
Judicial Transfer (JT) Means There Is a Less Likely Prospect Of Transfer’s Occurring
Fearing prosecutors will transfer vast numbers of juveniles to CC, the ATC has gone to great lengths to portray prosecutorial transfer (PT) as illegitimate or evil (see Deitch, Barstow, Lukens, & Reyna, 2009; Feld, 1995, 2000, p. 125; Zimring, 1991). The ATC is upset that appellate courts have continuously upheld the validity of PT. These rulings have held it does not amount to an unconstitutional grant of power to these officials by the legislature (see Frost & Bonnie, 2000, pp. 183-4). These courts have ruled that there is no constitutional right to be prosecuted in JC, and that charging power rightfully belongs to the executive branch of government, not to the judicial branch. The ATC resents these appellate decisions as one observer claimed:
This interpretation created a perverse incentive for state legislatures to rewrite judicial waiver laws altogether by instituting more statutory exclusion and prosecutorial discretion laws (Arya, 2010, p. 145, footnote omitted, emphases added).
There is nothing perverse about PT, although the ATC disdain is perhaps understandable since prosecutors are indeed more likely to transfer. A good deal of the expansion of PT in the mid- to late-1990s was due to both a sharp rise in violent juvenile crime and an unwillingness of JC judges to transfer many of those offenders to CC (see McCarthy, 1994; Sanborn, 1996b).
Prosecutors are the chief law enforcers of the community. They are the victim’s and society’s representatives. Typically, prosecutors’ transfer authorization needs only a qualified offense, and possibly a certain age and record. On the other hand, judges are less inclined to see wrongdoing only, and their only client is justice. Judges also usually have to rely upon a PO’s assessment (and possibly treatment providers’ analyses), and have more criteria to consider and satisfy before being authorized to transfer juvenile offenders. That judges transfer fewer offenders is easy to understand, then, as is the ATC’s endorsement of this transfer method.