Punishment, Proportionality and Jurisdictional Transfer of Adolescent Offenders: A Test of the Leniency Gap Hypothesis

Jeffrey Fagan, Columbia Law School
Aaron Kupchik
Akiva Liberman


In the past two decades, nearly every state has expanded its authority and simplified its procedures to transfer adolescent offenders from juvenile to criminal (adult) courts. As a result, the use of jurisdictional transfer has grown steadily. These developments reflect popular and political concerns that punishment in juvenile courts is too lenient for serious crimes committed by adolescents. Yet there is mixed evidence that expanded transfer authority has produced more certain or severe punishments for adolescents prosecuted in criminal courts. Some empirical studies show that adolescents transferred to criminal court are more likely to be convicted, sentenced to prison, and serve longer sentences, compared to similar cases that remain in the juvenile court. Other studies show that transferred cases receive similar sentences or receive less severe punishments. In this article, we report the results of a natural experiment comparing detention, disposition and custodial sentence lengths for matched groups of adolescents charged with serious felony offenses in juvenile or criminal courts. We report that adolescents prosecuted as adults are at a greater risk of detention and incarceration, and if incarcerated, sentenced to longer sentences than adolescents in juvenile courts. Yet the disparity between outcomes in juvenile and criminal courts is not as large as the rhetoric surrounding this issue would lead one to believe. The resilience of common law doctrine of diminished culpability of adolescents is evident in the limited effects of expanded jurisdictional transfer activity on sentencing and punishment of adolescents in criminal court. We discuss the jurisprudential and social policy implications of denying adolescents the latitude of a traditionally more rehabilitative and lenient juvenile court.