Who should decide when to put a child on trial in adult court, where the penalties are far more severe and the loss of anonymity is permanent?

That was the question before the New Jersey Supreme Court on Tuesday, when the justices were asked to weigh the merits of state laws that allow county prosecutors to make that determination — and then require state judges to uphold those calls unless they involve an outrageous blunder.

The stakes are high for hundreds of teens who end up in adult courts each year, some facing up to life in prison. In Bergen County, 31 cases have been transferred since the start of 2006. In Passaic County, 15 to 20 are moved each year.

The hearing also shapes up as a power struggle between prosecutors, who want to hold on to their powers, and state Superior Court judges, who are not pleased with the legal standard that essentially forces them to rubber-stamp a prosecutor’s request. And it highlights the tug between a desire to rehabilitate youthful offenders and public outrage over their actions — and the demand for tougher sanctions.

The American Civil Liberties Union, New Jersey Institute for Social Justice, state Public Defender’s Office and nearly two dozen other national and local groups are challenging the state’s “juvenile waiver laws.” arguing that the decision about who should be tried as an adult is a constitutional one that should rest more with the judicial branch.

“We are really pushing the envelope on separation of powers,” Lon Taylor, an assistant deputy public defender, said at the hearing in Trenton.

Prosecutors, meanwhile, say the discretion to charge individuals rightfully belongs with them.

“An individual’s need to remain in juvenile court must be balanced by society’s legitimate and growing concern over … juvenile crime,” said Jeanne Screen, a deputy state attorney general. “Our laws maintain that balance.”

Juvenile status: Lesser penalties

In New Jersey, a juvenile is defined as 17 or younger. But juveniles who are 16 and older can be transferred to adult court under the waiver laws if they are accused of homicide, kidnapping, aggravated assault and other violent offenses.

Juvenile cases are handled in the Family Division of the courts, the same division that decides matrimonial and child-custody disputes. Unlike adult criminal courts, juvenile proceedings are closed to the public and the juveniles cannot be identified.

The penalties in juvenile court — where the main goal is rehabilitation — are much lighter than in adult court. For example, an armed-robbery conviction in adult court carries a maximum penalty of 20 years in prison, with 17 years before parole. In juvenile court, the maximum sentence for armed robbery is four years’ imprisonment.

Juvenile records, unlike adult criminal records, are inaccessible to the public. Also, juvenile offenders are not subject to “collateral consequences,” such as loss of driving privileges, loss of the right to vote and other penalties often tacked onto the sentences of adult offenders.

With the rising number of juvenile offenses in the 1980s and 1990s, however, state legislators across the country began writing laws to allow the transfer of some violent juveniles to adult court.

But civil-liberties groups and defense attorneys say the trend went too far. If prosecutors request a juvenile’s transfer to adult court in New Jersey, they argue, then the judge in juvenile court is bound by law to grant the request unless defense attorneys can show that the request represents a “patent abuse of discretion.”

“That is a very difficult standard to satisfy,” Jeffrey Steinfeld, a Hackensack attorney who specializes in juvenile cases, said in an interview. “It’s almost impossible to overcome.”

Such a standard contributes to channeling more juveniles into the adult court system, he said.

“The problem is that juveniles are not adults and don’t think like adults,” Steinfeld said. “We really need to acknowledge the fact that they should be treated differently.”

Judge: Law "just wrong"

At issue Tuesday was a Middlesex County case in which several juveniles were accused of attacking a man in 2009, knocking out some of his teeth and taking his wallet.

The street mugging took an extraordinary turn when a trial judge challenged prosecutors’ authority to move the case to adult court, calling the juvenile waiver law “just wrong.” Appeals followed until the case reached the state’s highest court.

Patrick O’Hara, an attorney representing one of the juveniles, said at the hearing that the law was meant to deal with some juveniles who may deserve a harsher treatment than others. It was not meant to allow prosecutors to transfer juveniles to adult court just because they can, he said.

“But that’s what seems to be going on in some of these cases,” he said, asking the justices to grant more power to the courts to review prosecutors’ decisions.

Middlesex County Assistant Prosecutor Nancy Hulett did not agree. Deciding whether a juvenile should be moved to adult court is “a charging decision” best left to prosecutors and law enforcement officials, she argued.

“It’s not a sentencing,” Hulett said. “It simply determines whether they will be charged in juvenile court or will be charged in adult court.”

She added that juveniles and their attorneys still have the opportunity to prove that the prosecutor’s decision is a “patent abuse of discretion.”

No date for a decision has been announced.

Balancing interests

Susan Greco, chief assistant prosecutor in Passaic County, said that prosecutors seek to transfer juveniles to adult court in a small minority of cases, with their criminal history and the nature of the offense as determining factors. The damage done to the victims and their need to see the offender face serious penalties also plays an important role, Greco said.

Some attorneys say the issue comes down to balancing juveniles’ interests with public outrage towards violent young offenders.

Frank Lucianna, a long-time criminal defense attorney in Hackensack, said that balance has gradually been shifting as the public continues to demand stiffer penalties.

He recalled one of his own cases from the 1950s in which an 11-year-old boy from Bergen County was accused of killing his grandmother with a rifle because she refused to give him a glass of water. The sensational case provoked outrage throughout the county, he said, but it remained in juvenile court,where the boy was charged with manslaughter, was found delinquent and was incarcerated for four years.

“That’s what people are concerned about nowadays — that some juvenile offenders are not serving enough time in jail,” Lucianna said. If the boy were tried today, he said, “there would have been tremendous effort to try him in adult court.”