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54. Step 2—Determine the Appropriate Forum for Prosecution

When the subject is a juvenile, you will need to determine whether state or federal, adult or juvenile prosecution will best accomplish your goals. For example, after reviewing your federal juvenile prosecution options, you should consider any number of factors, including the following:

  1. Whether the subject will more easily be transferred to adult status in a state prosecution because of age. Many states consider persons to be adults for purposes of criminal prosecution at an age younger than eighteen.

  2. Whether the subject will more easily be transferred to adult status in a state prosecution because of limitations on the statutory bases for federal juvenile proceedings. Federal jurisdiction to initiate a juvenile delinquency proceeding may be established: (1) where the appropriate state court does not have jurisdiction or refuses to assume jurisdiction; (2) where the state does not have available programs and services adequate for the needs of juveniles; or (3) where the offense charged is a felony that is a crime of violence or one of the drug or gun offenses enumerated in the first paragraph of 18 U.S.C. § 5032 and there is a substantial federal interest in the case. Juvenile delinquency proceedings can be initiated for any federal crime if the state declines to prosecute the matter.

    A motion to transfer|B251 a juvenile to federal court as an adult may be based on the commission of a felony crime of violence or drug or firearm offense enumerated in the fourth paragraph of 18 U.S.C. § 5032. Age plays a factor in the charging decision. Under the Violent Crime Control and Law Enforcement Act of 1994 (the 1994 crime bill), juveniles who are 13 years of age may be tried as adults for violating 18 U.S.C. §§ 113(a), (b) and (c) (assault), 1111 (murder), 1113 (attempt to commit murder or manslaughter), or, if the juvenile possessed a firearm during the offense, §§ 2111 (robbery), 2113 (bank robbery), and 2241(a) and (c) (aggravated sexual abuse), unless the crimes occurred in Indian country where the tribe has not opted to allow the prosecution of thirteen year old juveniles as adults. Fifteen year old juveniles can be prosecuted as adults for violating any crime of violence (i.e., involving physical force against a person or property, see 18 U.S.C. § 16) and for violating 18 U.S.C. §§ 922(x) (Youth Handgun Safety Act), 924(b), (g) and (h) (firearms offenses), and 21 U.S.C. §§  841, 952(a), 955 and 959 (drug offenses). Sixteen year old juveniles may additionally be transferred to adult status for violating 21 U.S.C. § 953 (exportation of controlled substances).

  3. Whether it is more likely that the state will impose a harsher penalty. In a federal juvenile delinquency proceeding, official detention may not extend beyond the juvenile's twenty-first birthday if the juvenile was under eighteen at the time of disposition, or beyond five years for a juvenile who was between the ages of eighteen and twenty-one at the time of disposition. In addition, the period of detention may not exceed the maximum period of imprisonment authorized had the juvenile been an adult. 18 U.S.C. § 5037. There are at present no sentencing guidelines which are applicable to adjudications of delinquency, but the Supreme Court has held that unless an upward departure is justified by the sentencing court, juveniles may not be sentenced beyond the guideline range for a similarly situated adult. United States v. R.L.C., 503 U.S. 291 (1992).

  4. The appropriateness of available detention facilities in the state or federal system. When a convicted juvenile offender who has been transferred to adult status has reached the age of 18, federal prison officials can place the person in a regular adult institution. They must wait until an adjudicated juvenile delinquent has reached the age of 21 to put the person in an adult facility.

  5. The desirability of keeping codefendants together in the same forum.

  6. The likelihood of delay caused by the filing of an interlocutory appeal of a federal transfer decision, and the effect of delay on the trial of codefendants.

  7. The likelihood that the court might deny a transfer to adult prosecution where the United States Attorney has certified that there is a "substantial federal interest in the case". Under § 5032, in order to proceed against a juvenile in federal court, the Attorney General must certify, after investigation, that one or more of the enumerated statutory bases for federal jurisdiction exists. The Attorney General's authority to make this certification has been redelegated to the United States Attorneys. See 28 C.F.R. 0.57.

    If a motion for transfer to adult status is denied and the juvenile is detained, the case must be brought to trial within 30 days. 18 U.S.C. §  5036. Additionally, you should consider the potential effect of a juvenile proceeding on a subsequent trial of adult codefendants. If you were to dismiss the juvenile proceeding whenever a transfer was denied, you might risk having later certifications challenged (as made in bad faith).

  8. Whether a non-jury federal juvenile adjudication (in essence, a closed bench trial) with the potential for up to five years' detention under 18 U.S.C. § 5037 provides sufficient deterrence and an appropriate use of prosecutorial and judicial resources, or whether obtaining an adult conviction that may be used for impeachment purposes in subsequent trials and that disqualifies a defendant from possessing a firearm under federal law is more appropriate. The authority to make this motion was delegated to the United States Attorneys by then Assistant Attorney General for the Criminal Division Jo Ann Harris on July 20, 1995.

[cited in Criminal Resource Manual 48]

Updated June 8, 2015