On January 9, 2012 the ACLU-NJ joined several other organizations in filing an amicus regarding the standard governing the transfer of 16 and 17 year old youth to the adult criminal system. The current system allows a juvenile to be transferred from the family part to the adult criminal part with a motion made by the prosecutor and a showing of probable cause as long as the prosecutor follows Waiver Guidelines promulgated by the Attorney General. The question is: what can be done when prosecutors fail to follow those guidelines? The brief urged the Supreme Court of New Jersey to reverse the New Jersey Appellate Division’s adoption of a “patent and gross abuse of discretion” standard for judicial review of prosecutorial waiver motions. The brief also argued that the waiver statute, as applied, violated the juvenile’s right to due process under the United States and New Jersey Constitutions, and violated the separation of powers clause of the New Jersey State Constitution.
The brief highlighted the inequities in the application of waiver laws, as minority youth are disproportionally waived to the adult system, thereby suffering disparate rates of incarceration and collateral consequences of conviction.
In the Fall of 2012 the New Jersey Supreme Court reversed the Appellate Division's Decision with respect to the standard of review that should be applied.