Mandatory transfer of juveniles to adult
It should be noted that 18 U.S.C.A. § 5032 provides
transfer|B253 to adult status for juveniles alleged to have
committed acts after
their sixteenth birthday which would be felonies that have an
element of using,
attempted use, or threatened use of physical force against another,
a substantial risk that physical force would be used against
committing the offense, or it is an offense described in 18
32, 81, 844(d), (e), (f), (h), (i) or 2275, 21 U.S.C.A. §§
(B) or (C), (d) or (e), or 21 U.S.C.A. §§ 1002(a), 1003,
1010(b)(1), (2) or (3). Mandatory transfer in this manner also
juvenile to have previously been found guilty of an act, which if
an adult, would have been one of the offenses set forth in this
paragraph or such
an offense in violation of a state felony statute. 18 U.S.C.A.
§ 5032 (West
It has been held that the phrase, "which if committed by an
Section 5032, clearly indicates Congress intended "found guilty" to
previous juvenile delinquency adjudications. Juvenile Male
#1, 47 F. 3d
at 69; United States v. David H., 29 F. 3d 489, 492 (9th
Cir. 1994). The
court also stated that Section 5032 indicates the court is not to
facts underlying the prior conviction. Id. at 493.
is triggered by a prior conviction of a felony offense that has as
thereof the use, attempted use, or threatened use of physical force
person of another, or that, by its very nature, involves a
substantial risk that
physical force against the person of another may be used in
offense. Id. The court must look to the elements or
essential nature of
the criminal offense for which the juvenile was convicted.
Id. at 493-94.
If an element of the offense is the use, attempted use, or
threatened use of
force, or if the offense, by its very nature, involves a
substantial risk of
physical force, the prior conviction triggers mandatory transfer
5032, regardless of the specific conduct underlying the conviction.
One factual scenario that would trigger the mandatory transfer
would occur where the juvenile is alleged to have violated 21
841(a) of the Controlled Substances Act after his sixteenth
birthday, and a
previous adjudication has determined that the juvenile previously
same offense, even if the adjudication was under a state felony
H.S., 717 F. Supp. at 914, rev'd on other grounds, In
Case (Juvenile Transfer), 893 F. 2d at 363.
As in discretionary transfers, the government must file an
alleging the offenses and a motion to transfer|B251 the juvenile to
to implement mandatory transfer. David H., 29 F. 3d at 491.
mandatory transfer is an exception to discretionary transfer, both
considered in the same proceeding if the government is moving to
alleging both methods. Id. at 491-92. Since both mandatory
discretionary transfer depend on the existence of particular facts,
a court must
hold a hearing and make findings before a transfer may occur.
Id. If the
findings indicate the mandatory transfer provision applies, the
will forego the "interest of justice" analysis it would otherwise
make on the
issue of discretionary transfer and transfer the juvenile.
The mandatory transfer provision eliminates the court's
granting transfer which it enjoys when the government proceeds
under the interest
of justice standard. Obviously, Congress intended juveniles to be
seriously for recidivism. Id., at 492-93.