Juvenile Delinquents and Federal Criminal Law: The Federal Juvenile Delinquency Act and Related Matters

Juvenile Delinquents and Federal Criminal

Law: The Federal Juvenile Delinquency Act

and Related Matters

Updated May 9, 2023

Congressional Research Service

https://crsreports.congress.gov

RL30822

Juvenile Delinquents and Federal Criminal Law

Summary

The Federal Juvenile Delinquency Act (JDA) gives federal authorities three options when a

juvenile violates federal criminal law. First, they can refer the juvenile to state authorities.

Second, they can initiate federal delinquency proceedings. Third, if a case is retained in the

federal system and involves a serious offense, they can petition the federal court to transfer the

juvenile for trial as an adult. The JDA applies to those charged before the age of 21 with a breach

of federal criminal law occurring before they reached the age of 18.

The JDA generally favors referring juveniles to state authorities, but it permits federal

delinquency proceedings where state courts cannot or will not accept jurisdiction. Given the

preference for state juvenile proceedings and the fact that a violation of federal law will ordinarily

support the assertion of state juvenile court jurisdiction, most juveniles who violate federal

criminal law never come in contact with federal authorities. Many of those who do are returned to

state officials to be processed through the state court system.

Most juvenile delinquency cases that do remain in the federal system have historically arisen in

areas beyond state jurisdiction, primarily in Indian country. Thus, the majority of federal

delinquency proceedings have involved Native Americans. Federal prosecutors may also elect to

initiate federal proceedings if the state courts are unwilling or unable to assume jurisdiction, or

the state has no adequate treatment plans, or the juvenile is charged with a crime of violence or

with drug trafficking.

Federal juvenile delinquency proceedings require neither grand jury indictment, public trial, nor

trial by jury. The constitutional rights available to juveniles at delinquency proceedings are

otherwise much like those found in adult criminal trials. Juveniles found delinquent may be

released under suspended sentence, placed on probation, ordered to pay restitution and/or

sentenced to detention. The period of detention, if any, may not exceed the term which might be

imposed upon an adult offender for the same misconduct. The period of detention may be

followed by a period of juvenile delinquent supervision, revocation of which in serious cases may

result in detention until the individual is 26 years of age.

A U.S. district court may, and in some cases must, transfer a juvenile for criminal trial as an

adult. A juvenile may also request a transfer to trial as an adult. Discretionary transfers come in

two varieties. A court may transfer a juvenile who, when 13 years of age or older, is alleged to

have committed aggravated assault, murder, attempted murder, armed robbery, or armed rape. A

court may also transfer a juvenile who, when 15 years of age or older, is alleged to have

committed drug trafficking or a violent felony. The court orders or denies the transfer petition

after considering the seriousness of the offense, the age and maturity of the juvenile, the

juvenile’s prior delinquency record, the results of past rehabilitative efforts, and the availability of

existing rehabilitative programs. A court must order a transfer when a juvenile has a prior

comparable conviction or juvenile adjudication and is charged with committing a violent offense

or a drug trafficking offense at the age of 16 or older.

This report begins with a brief discussion of the evolution of the treatment of juvenile criminal

offenders in the United States. It then analyzes in detail the various provisions of the JDA.

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Juvenile Delinquents and Federal Criminal Law

Contents

Introduction ..................................................................................................................................... 1

History of Federal Delinquency Law .............................................................................................. 1

Overview of Existing Federal Law.................................................................................................. 3

Federal Juvenile Offenders in State Proceedings ............................................................................ 4

Arrest and Arraignment ................................................................................................................... 5

Initial Stages of Federal Adjudication ............................................................................................. 8

Transfers .......................................................................................................................................... 9

Delinquency Hearings ................................................................................................................... 14

Disposition..................................................................................................................................... 14

Juvenile Records and Conditions of Custody ................................................................................ 17

Juveniles Tried as Adults ............................................................................................................... 18

Addendum ..................................................................................................................................... 19

18 U.S.C. § 5032 (Text) .......................................................................................................... 19

Contacts

Author Information........................................................................................................................ 21

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Introduction

Juvenile offenders who violate federal criminal law are generally the responsibility of state

juvenile court authorities.1 The Federal Juvenile Delinquency Act (JDA) permits federal

delinquency proceedings when state courts cannot or will not accept jurisdiction or, in the case of

a limited number of crimes, when there is a substantial federal interest. In the more serious of

these cases, the juvenile offender may be transferred for trial as an adult. The rise in serious

juvenile crime, the contraction of state juvenile court jurisdiction, and the expansion of federal

criminal law have all contributed to the increased prevalence of federal delinquency proceedings,

as described here.

History of Federal Delinquency Law

In early America, the law held that a child, until the age of 7, lacked the maturity necessary to be

held criminally responsible. Thereafter, the law rebuttably presumed incapacity until the child

reached the age of 14, by which time acquisition of the intellectual capability to entertain criminal

intent was assumed. As an early nineteenth century commentator explained,

Under the age of seven years, indeed, it seems that no circumstances of mischievous

discretion can be admitted to overthrow the strong presumption of innocence which is

raised by an age so tender. During the interval between seven and fourteen, the infant is

prima facie supposed to be destitute of criminal design; but this presumption diminishes as

the age increases, and even during this interval of youth, may be repelled by positive

evidence of vicious intention. For a tenderness of years will not excuse a maturity in crime;

. . . since the power of contracting guilt is measured rather by the strength of the

delinquent’s understanding, than by days and years. Thus, children of thirteen, eight, and

ten years of age, have been executed for capital offenses, because they respectively

manifested a consciousness of guilt, and a mischievous discretion or cunning. After the age

of fourteen, an infant is on the same footing with those of the mature years. 2

A child found capable of the requisite intent was subject to trial and punishment as an adult; other

children were set free.

In the early twentieth century, the states established juvenile court systems so that children

accused of conduct that would be criminal in an adult might be processed apart from the criminal

justice system in an environment more closely attuned to their rehabilitative needs. By 1930, the

Wickersham Commission reported that only the federal government continued to uniformly treat

children, charged with a crime, as adults.3 The states had instead adopted various juvenile court

systems in which the “child offender [was] generally dealt with on a noncriminal basis and . . .

protected from prosecution and conviction for crime . . . [They undertook] to safeguard, train, and

1 This report is available in an abridged version as CRS Report R47548, Juvenile Delinquents and Federal Criminal

Law: The Federal Juvenile Delinquency Act and Related Matters in Short, by Charles Doyle.

2 3 JOSEPH CHITTY, A PRACTICAL TREATISE ON CRIMINAL LAW 724 (3d Am. ed. 1836); accord 1 JOEL PRENTISS BISHOP,

COMMENTARIES ON THE CRIMINAL LAW § 368 (7th ed. 1886); ROLLIN M. PERKINS & RONALD N. BOYCE, CRIMINAL LAW

936-39 (3d ed. 1982).

3 National Commission on Law Observance and Enforcement [(Wickersham Commission)], REPORT ON THE CHILD

OFFENDER IN THE FEDERAL SYSTEM OF JUSTICE 2 (1931).

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educate rather than to punish him. [They] substituted social for penal methods; the concept of

juvenile delinquency for that of crime.”4

Attorney General Wickersham also pointed out that (1) most of the federal cases involved

interstate joyriding, an offense for which juvenile court treatment was thought particularly

appropriate; (2) “[t]here [were] not enough juveniles brought into the Federal courts to justify the

establishment of juvenile courts by act of Congress”; and (3) “federal penal institutions are not

adequately equipped to deal with this class of juvenile delinquency.”5 He recommended, and

Congress agreed, that the disparity should be adjusted by authorizing the Department of Justice to

return juveniles charged with violating federal law to the juvenile authorities of their home state.6

This solution suffered two unfortunate limitations. First, it did not account for juveniles charged

with capital crimes. State law ordinarily excluded capital offenses from the jurisdiction of its

juvenile courts. Second, state juvenile courts had no jurisdiction over juveniles who lived, and

whose misconduct occurred upon, Indian reservations or military installations over which the

state had no legislative jurisdiction.

Congress addressed these shortcomings with the Federal Juvenile Delinquency Act of 1938.7

State juvenile proceedings remained the preferred alternative, but the Attorney General might

instead elect to proceed against a juvenile as an adult, and federal juvenile proceedings became

possible should both parties agree.8 Although supplemented in 1950 by the Federal Youth

Corrections Act, which afforded federal juvenile offenders tried as adults the prospect of special

rehabilitative opportunities,9 the Act remained essentially unchanged for over thirty-five years.

In 1974, Congress substantially revised the Act10 “to provide basic procedural rights to juveniles

who come under federal jurisdiction and to bring federal procedures up to the standards set by

various model acts, many state codes and court decisions.”11 For the first time, crimes punishable

by death or life imprisonment (primarily murder, kidnapping, and rape) were made subject to the

federal juvenile system.12 At the time, the Supreme Court’s decision in Furman v. Georgia13 had

recently declared unconstitutional the procedure under which the vast majority of state and

federal capital punishment statutes operated. It was not until two years thereafter that Woodson v.

North Carolina14 and Gregg v. Georgia15 gave some clue as to what procedures would pass

constitutional muster. When Congress established the requisite procedures to restore capital

punishment as a federal sentencing option, it exempted juveniles.16

In the 1974 revision of federal juvenile law, Congress curtailed what to that point had been the

Attorney General’s unilateral discretion to determine whether children accused of federal crimes

4 Id.

5 H.R. REP. NO. 72-958, at 2 (1932).

6 Id.

7 ch. 486, 52 STAT. 764 (1938); 18 U.S.C. §§ 921–927 (1940).

8 ch. 486, 52 STAT. at 765; 18 U.S.C. § 922 (1940).

9

ch. 1115, 64 STAT. 1085, 1086 (1950); 18 U.S.C. §§ 5005–5026 (1952).

10 88 STAT. 1133 (1974); 18 U.S.C. §§ 5031–5042 (1976).

11 S. REP. NO. 93-1011, at 19 (1974).

12 88 STAT. 1133–1134 (1974); 18 U.S.C. §§ 5031, 5032 (1976).

13 408 U.S. 238 (1972).

14 428 U.S. 280 (1976).

15 428 U.S. 153 (1976).

16 18 U.S.C. § 3591.

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should be tried as adults in federal criminal proceedings. Congress instead authorized the

Attorney General to petition the federal court to transfer, for trial as an adult, any 16- or 17-yearold accused of a crime which carried a maximum penalty of death, life imprisonment, or

imprisonment for ten years or more.17

Congress made the final major adjustments ten years later with changes that emphasized that at

least some of the juveniles who commit serious crimes merited punishment as adults. The

Sentencing Reform Act of 1984 repealed the Federal Youth Corrections Act and eliminated

juvenile parole provisions.18 The Sentencing Reform Act also lowered the age at which a juvenile

may be transferred for trial as an adult and expanded the list of crimes that justify such a

transfer.19 Thus far at least, the courts have declined to read into this history a congressional intent

to repudiate rehabilitation as a sentencing consideration in federal juvenile proceedings.20

Overview of Existing Federal Law

The continuing basic premise of federal juvenile law is that juvenile matters, even those arising

under federal law, should be handled by state authorities whenever possible.21 The remote second

preference of federal law is treatment of the juvenile under the federal delinquency provisions.22

Because many federal cases arise in areas beyond the reach of state authorities, i.e., primarily

Indian country, the majority of federal delinquency proceedings have historically involved Native

Americans.23 In a limited, but growing, number of instances involving drugs or violence, federal

law permits the trial of juveniles as adults in federal court.24

17 88 STAT. 1134 (1974); 18 U.S.C. § 5032 (1976).

18 98 STAT.1837, 2027 (1984). Congress made modest, largely technical, adjustments thereafter on a number of

occasions: P.L. 99-646, § 21(a), 100 STAT. 3596 (1986) (18 U.S.C. § 5037 (1980 & Supp. V)); P.L. 100-690, §§

6467(a), 7045, 102 STAT. 4375, 4400 (1988) (18 U.S.C. §§ 5032, 5034 (1988)); P.L. 101-647, §§ 1205(n), 3599G, 104

STAT. 4831, 4832 (1990) (18 U.S.C. § 5032 (1988 & Supp. II)); P.L. 103-322, §§ 140001, 140002, 140003, 140005,

150002, 108 STAT. 2012, 2031, 2032, 2035 (1994) (18 U.S.C. §§ 5032, 5038, 5039 (1994)); P.L. 104-294, §§

601(c)(1), (f)(16), (g)(1), 604(b)(40), 110 STAT. 3499, 3500, 3502, 3509 (1996) (18 U.S.C. §§ 5032, 5037, 5038 (1994

& Supp. III)); P.L. 107-273, § 12301, 116 STAT. 1986 (2002) (18 U.S.C. § 5037 (2000 & Supp. III)).

19 18 U.S.C. §§ 5037, 5032.

20 United States v. Lopez, 860 F.3d 201, 210 (4th Cir. 2017) (“Rather, the JDA [Juvenile Delinquency Act] is intended

to ensure that at the time they are brought into the criminal justice process, juveniles will have the benefit of a system

that is tailored to their special needs and vulnerabilities and, in particular, to their special receptivity to rehabilitation.”);

United States v. Juvenile, 347 F.3d 778, 786–87 (9th Cir. 2003) (“Moreover, if the primary goal of the federal juvenile

justice system is no longer rehabilitation, as the government asserts, then the lessened due process protections afforded

under the system would become extremely problematic.”); see also United States v. M.R.M., 513 F.3d 866, 869 (8th

Cir. 2008); United States v. Patrick V., 359 F.3d 3, 10–11 (1st Cir. 2004) (each citing United States v. R.L.C., 503 U.S.

291, 298 (1992) (opinion of Souter, J.)).

21 18 U.S.C. § 5032. Section 5032 does recognize an exception for minor offenses committed within federal enclaves:

“A juvenile alleged to have committed an act of juvenile delinquency, other than a violation of law committed within

the special maritime and territorial jurisdiction of the United States for which the maximum authorized term of

imprisonment does not exceed six months, shall not be proceeded against in any court of the United States unless ….”

Id. (emphasis added.).

22 Id.

23 United States v. Juvenile Male, 492 F.3d 1046, 1049 n.3 (9th Cir. 2007) (per curiam) (“Because of the structure of

the FJDA, Native American youth are disproportionately subject to federal court jurisdiction for their delinquency

offenses.”); see generally Amy J. Standefer, Note, The Federal Juvenile Delinquency Act: A Disparate Impact on

Native American Juveniles, 84 MINN. L. REV. 473 (1999).

24 18 U.S.C. § 5032.

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Under the JDA,25 a juvenile is an individual under 18 years of age, or an individual between 18

and 21 years of age alleged to have committed a federal offense when under 18 years of age.26

The Act does not apply to individuals over 21 years of age or to conduct committed after a person

turns 18.27 Federal authorities, however, may prosecute as an adult any individual whose active

participation in a conspiracy or racketeering enterprise bridges his or her eighteenth birthday.28

Once the federal courts have found a juvenile delinquent, however, a court that revokes a

juvenile’s delinquent supervised release may order the juvenile held until age 26.29

Federal Juvenile Offenders in State Proceedings

Criminal investigation and prosecution is first and foremost the domain of state and local

governments, and conduct which violates federal criminal law is usually contrary to state law as

well. For example, the federal Controlled Substances Act30 has a state equivalent in every

jurisdiction,31 and robbery of a federal insured bank,32 or murder of a federal employee or law

enforcement officer,33 will almost always be contrary to the state robbery and murder statutes in

the state in which the offenses occur.34 Moreover, while state crimes are the most common basis

25 18 U.S.C. §§ 5031 (definitions), 5032 (delinquency proceedings in district courts; transfer for criminal prosecution),

5033 (custody prior to appearance before magistrate judge), 5034 (duties of magistrate judge), 5035 (detention prior to

disposition), 5036 (speedy trial), 5037 (dispositional hearing), 5038 (use of juvenile records), 5039 (commitment),

5040 (support), 5042 (revocation of probation), 5043 (juvenile solitary confinement); see also Davis Jaffe & Darcie

McElwee, Federally Prosecuting Juvenile Gang Members, 68 DOJ J. FED. L. & PRAC.15 (2020); JM §§ 9-8.000 to 98.220 (Jan. 2020), https://www.justice.gov/jm/jm-9-8000-juveniles.

26 “For purposes of this chapter, a ‘juvenile’ is a person who has not attained his eighteenth birthday, or for the purpose

of proceedings and disposition under this chapter for an alleged act of juvenile delinquency, a person who has not

attained his twenty-first birthday, and ‘juvenile delinquency’ is the violation of a law of the United States committed by

a person prior to his eighteenth birthday which would have been a crime if committed by an adult or a violation by such

a person of section 922(x) [relating to unlawful possession of a handgun or handgun ammunition by a juvenile].” Id.

§ 5031. Nevertheless, as discussed below under the section captioned “Disposition,” detention, detention after

revocation of juvenile probation, and detention after revocation of juvenile delinquent supervision may in some cases

extend until the individual is 26 years of age. Id. § 5037(b)-(c), (d)(6). Moreover, a court may continue to exercise

jurisdiction over an individual who was under 21 years of age when proceedings began, but who turned 21 during the

course of the proceeding. United States v. Woods, 827 F.3d 712, 717 (7th Cir. 2016) (citing in accord, United States v.

Ramirez, 297 F.3d 185, 191–92 (2d Cir. 2002); United States v. Smith, 851 F.2d 706, 710 (4th Cir. 1988); United

States v. Martin, 788 F.2d 696, 697–98 (11th Cir. 1986); United States v. Doe, 631 F.2d 110, 112-13 (9th Cir. 1980)).

27 18 U.S.C. § 5031; United States v. Lopez, 860 F.3d 201, 209 (4th Cir. 2017); United States v. Wright, 540 F.3d 833,

839 (8th Cir. 2008); Ramirez, 297 F.3d at 191–92; United States v. Male Juvenile (Pierre Y.), 280 F.3d 1008, 1017 (9th

Cir. 2002).

28 United States v. Mendez, 28 F.4th 1320, 1324 (9th Cir. 2022); United States v. Guerrero, 768 F.3d 351, 361–62 (5th

Cir. 2014); United States v. Soto-Beniquez, 356 F.3d 1, 23–24 (1st Cir. 2003); United States v. Burns, 298 F.3d 523,

537 (6th Cir. 2002); United States v. Delatorre, 157 F.3d 1205, 1209–11 (10th Cir. 1998); United States v. Thomas,

114 F.3d 228, 238–39 (D.C. Cir. 1997); United States v. Wong, 40 F.3d 1347, 1365-66 (2d Cir. 1994); United States v.

Cruz, 805 F.2d 1464, 1476 (11th Cir. 1976). For a more extensive discussion of questions presented by crimes that

straddle the jurisdictional age lines see, D. Ross Martin, Note, Conspiratorial Children? The Intersection of the Federal

Juvenile Delinquency Act and Federal Conspiracy Law, 74 B.U. L. REV. 859 (1994).

29 18 U.S.C. § 5037(d)(6).

30 21 U.S.C. §§ 801–889.

31 E.g., ALA. CODE §§ 20-2-1 to 20-2-93; ALASKA STAT. §§ 11.71.010 to 11.71.900; ARIZ. REV. STAT. ANN. §§ 13-3401

to 13-3423; ARK. CODE ANN. §§ 5-64-101 to 5-64-1005.

32 18 U.S.C. § 2113.

33 Id. § 1114.

34 E.g., CAL. PEN. CODE §§ 187–189 (murder); COLO. REV. STAT. §§ 18-3-101 to 18-3-107 (homicide); CONN. GEN.

STAT. ANN. §§ 53a-54a to 53a-58a (homicide); DEL. CODE ANN. tit.11 §§ 631–641 (homicide); FLA. STAT. ANN.

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for state juvenile court jurisdiction, many state juvenile courts enjoy delinquency jurisdiction

based upon a violation of federal law.35 Thus, an individual under 18 who violates federal

criminal law can move through the state juvenile delinquency system without ever coming into

contact with federal authorities.

Contractions in state juvenile court jurisdiction, however, make this less likely than was once the

case. Many states now define juvenile court jurisdiction more narrowly than federal law, in terms

of age or crime or both.36 Some also permit the adult criminal trial of a juvenile either through the

exercise of concurrent jurisdiction or a waiver or transfer of jurisdiction under circumstances the

federal courts could not.37

In most instances, federal law favors dealing with juvenile offenders under state law. Federal

juvenile proceedings are only possible if: relevant state courts are unable or unwilling to proceed;

their juvenile programs are unavailable or inadequate; or the offense is a designated serious

federal offense.38

Arrest and Arraignment

The JDA, 18 U.S.C. § 5033, requires that a juvenile taken into federal custody for violating

federal law must be advised of his or her legal rights immediately, and the juvenile’s parents or

§ 812.13 (robbery); GA. CODE ANN. §§ 16-8-40, 16-8-41 (robbery); HAWAII REV. STAT. ANN. §§ 708-840 to 708-842

(robbery); IDAHO CODE ANN. §§ 18-6501 to 18-6503 (robbery).

35 ALA. CODE § 12-15-102 (“When used in this chapter, the following words and phrases shall have the following

meanings . . . (6) Delinquent Act. An act committed by a child that is designated a violation, misdemeanor, or felony

offense pursuant to the law of the . . . state in which the act was committed or pursuant to federal law . . . .”); see also

ARIZ. REV. STAT. ANN. § 8-201; CAL. WEL. & INST. CODE § 602; COLO. REV. STAT. ANN. § 19-2.5-103; CONN. GEN.

STAT. ANN. § 46b-120; FLA. STAT. ANN. § 985.03; GA. CODE ANN. § 15-11-2; HAWAII REV. STAT. § 571-11; IDAHO

CODE § 20-505; ILL. COMP. STAT. ANN. ch.705 § 405/5-105; IOWA CODE § 232.2; LA. CHILD. CODE art. 804; MICH.

COMP. LAWS ANN. § 712A.2; MINN. STAT. ANN. § 260B.007; MISS. CODE § 43-21-105; N.D. CENT. CODE § 27-20.2-01;

OHIO REV. CODE § 2152.02; 10A OKLA. STAT. ANN. § 2-1-103; ORE. REV. STAT. § 419C.005; PA. STAT. AND CONS.

STAT. ANN. tit.42 § 6302; R.I. GEN. LAWS § 14-1-3; S.D. COD. LAWS § 26-8C-2; TENN. CODE ANN. § 37-1-102; TEX.

FAM. CODE ANN. § 51.03; UTAH CODE ANN. § 78A-6-103; VT. STAT. ANN. tit. 33 § 5102; VA. CODE § 16.1-228; WASH.

REV. CODE ANN. § 13.40.020; WIS. STAT. ANN. § 938.02.

36 Although most juvenile courts have delinquency jurisdiction over juveniles under 18 years of age, there are a few

exceptions, e.g., MD. CODE, ANN., CTS. & JUD. PROC. § 3-8A-03 (at least 13); N.C. GEN. STAT. § 7B-1501 (under 16).

Far more common are crime-specific limitations on juvenile court delinquency jurisdiction, e.g., ALASKA STAT.

§ 47.12.030 (The juvenile court has no jurisdiction over juveniles who, when 16 years of age or older, are alleged to

have committed an unclassified felony (e.g., murder, manslaughter, rape), a class A felony (e.g., first degree kidnaping,

first degree robbery, first degree assault), first degree arson, or a class B felony involving the use of deadly weapon by

a juvenile previously convicted (or adjudged delinquent) of a crime against an individual involving the use of a deadly

weapon) or misuse of a firearm; IND. STAT. ANN. § 31-30-1-4 (the juvenile court has no jurisdiction over an individual

16 or older charged with various violent crimes, e.g., murder, kidnapping, rape, robbery, and carjacking); MINN. STAT.

ANN. §§ 260B.101, 260B.007 (the juvenile court has no jurisdiction over a juvenile charged with murder); N.J. STAT.

ANN. § 2A:4A-26.1 (the juvenile court must waive jurisdiction over a juvenile, 15 or older, with a finding of probable

cause relating to various violent crimes, e.g., homicide, robbery, carjacking, rape, kidnapping or arson); PA. STAT. AND

CONS. STAT. ANN. tit.42 § 6302 (delinquent acts over which the juvenile court has jurisdiction do not include murder,

certain violent crimes (e.g., rape, robbery, and kidnapping) committed by a juvenile, 15 or older, committed while

armed with dangerous weapon or after having previously been found delinquent for committing certain violent crimes);

UTAH CODE ANN. §§ 78A-6-103, 78A-5-102.5 (the juvenile court has no jurisdiction of juveniles, 16 or older, charged

with murder).

37 E.g., ALA. CODE § 12-15-203 (transfer of any juvenile, 14 or older, for any crime); MO. ANN. STAT. § 211.071

(transfer of any juvenile, 12 or older, for any felony); MONT. CODE ANN. §§ 41-5-203, 41-5-206 (concurrent

jurisdiction); N.H. REV. STAT. ANN. § 169-B:24 (transfer of any juvenile for any felony).

38 18 U.S.C. § 5032.

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guardian must be notified immediately.39 The courts have held that because federal custody

activates the JDA requirements, these obligations only begin after a juvenile who was initially

detained by state, local, or tribal officials is turned over to federal authorities.40 The notification

requirement may be excused, however, when the juvenile frustrates reasonable notification

efforts.41 Much of the case law relating to the federal advice and notification provisions comes

from the U.S. Court of Appeals for the Ninth Circuit, which has held that



the word “immediate” means the same for both advice and notifications

purposes;42



advice given 4 hours after arrest and notification given 3½ hours after arrest has

not been given “immediately”;43

notice given within close to an hour after arrests had been given immediately;44

parental notification must include advice as to the juvenile’s rights;45

parental notification may be accomplished through the good offices of the

surrogate or appropriate foreign consulate when the juvenile’s parents reside

outside of the United States;46

convictions or delinquency determinations must be overturned if they are tainted

by violations of section 5033 so egregious as to violate due process;47 and

less egregious but prejudicial violations of section 5033 may require that any

resulting incriminating statements be suppressed.48











The juvenile must also be brought before a magistrate for arraignment “forthwith.”49 At night, on

weekends, or at other times when a magistrate is not immediately available, arraignment may be

within a time reasonable under the circumstances,50 and a waiver of Miranda rights may be

39 Id. § 5033.

40 United States v. Kerr, 120 F.3d 239, 241–42 (11th Cir. 1997); cf. United States v. Doe, 226 F.3d 672, 679 (6th Cir.

2000).

41 United States v. Burrous, 147 F.3d 111, 115–16 (2d Cir. 1998).

42 United States v. Doe, 219 F.3d 1009, 1014–15 (9th Cir. 2000).

43 United States v. Juvenile (RRA-A), 229 F.3d 737, 744 (9th Cir. 2000); Doe, 219 F.3d at 1014–15.

44 United States v. Female Juvenile (Wendy G.), 255 F.3d 761, 765 (9th Cir. 2001).

45 Juvenile (RRA-A), 229 F.3d at 744; Doe, 219 F.3d at 1015; Female Juvenile (Wendy G.), 255 F.3d at 767–77.

46 United States v. C.M., 485 F.3d 492, 500 (9th Cir. 2007); Juvenile (RRA-A), 229 F.3d at 744.

47 United States v. Juvenile Male, 595 F.3d 885, 902 (9th Cir. 2010); C.M., 485 F.3d at 505; Juvenile (RRA-A), 229

F.3d at 744; Doe, 219 F.3d at 1016.

48 United States v. D.L., 453 F.3d 1115, 1125–27 (9th Cir. 2006); Juvenile (RRA-A), 229 F.3d at 744; Doe, 219 F.3d at

1017; United States v. Doe, 226 F.3d 672, 678–80 (6th Cir. 2000). Harmless violations may go unsanctioned. United

States v. A.S.R., 81 F. Supp. 3d 709, 721 (E.D. Wis. 2015) (failure to advise the juvenile’s parents of the juvenile’s

rights).

49 18 U.S.C. § 5033; C.M., 485 F.3d at 502.

50 Doe, 219 F.3d at 1015–16 (a 31-hour delay in the absence of extenuating circumstances was not reasonable); United

States v. Doe, 862 F.2d 776, 780 (9th Cir. 1988) (36-hour delay was unreasonable); United States v. Doe, 701 F.2d

819, 823–24 (9th Cir. 1983) (delay between 11 at night and arraignment in the morning two days later was reasonable

in light of unavailability of a magistrate and the officer’s press of official business); United States v. DeMarce, 513

F.2d 755, 757–58 (10th Cir. 1975) (80-hour delay unreasonable even if some of delay fell on a weekend); United States

v. Nash, 620 F. Supp. 1439, 1444 (S.D.N.Y. 1985) (7-9 hour delay on a weekday unreasonable even without proof of

bad faith).

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construed as a waiver of the right to timely presentation.51 When a magistrate is available,

arraignment may not be delayed simply because the government is proceeding with an abundance

of caution or because the associated paperwork is tedious.52 Once before the magistrate, the

juvenile is entitled to the assistance of counsel and to have counsel appointed in the case of

indigence.53 The magistrate may also appoint a guardian ad litem, and, after a hearing before

counsel, order the juvenile detained to guarantee subsequent court appearances or for the safety of

the juvenile or anyone else.54

A juvenile under federal detention is entitled to a delinquency hearing within 30 days or to have

the information charging his or her delinquency dismissed with prejudice unless he or she has

contributed or consented to the delay or unless dismissal with prejudice would be contrary to the

interests of justice.55 This speedy trial requirement runs from the time the juvenile was taken into

federal custody pending judicial proceedings,56 but does not attach to any period of state

detention;57 to any period during which the juvenile was being held for purposes other than the

pendency of delinquency proceedings;58 to any time when the juvenile is not being detained;59 to

delays attributable to the juvenile’s deception;60 to the period between an admission or guilty plea

and sentencing;61 or to the period for which a continuance has been granted at the juvenile’s

behest.62 Time spent on the government’s appeal is excludable in the interest of justice,63 as is

time spent litigating the government’s transfer motions,64 but not when the juvenile was being

unlawfully detained at the time of the government’s motion.65

51 United States v. Jones, 566 F. Supp. 3d 956, 962–63 (D.S.D. 2021).

52 United States v. D.L., 453 F.3d 1115, 1123–24 (9th Cir. 2006).

53 18 U.S.C. § 5034.

54 Id. The Supreme Court has upheld state juvenile pretrial detention, Schall v. Martin, 467 U.S. 253, 256–57 (1984),

and adult federal pretrial detention, United States v. Salerno, 481 U.S. 739, 741 (1987). Section 5035 states that a

juvenile may only be detained in a juvenile facility or other suitable place.

55 18 U.S.C. § 5036.

56 United States v. D.B., 61 F.4th 608, 612 (8th Cir. 2023); United States v. Female Juvenile, A.F.S., 377 F.3d 27, 34

(1st Cir. 2004); United States v. Wong, 40 F.3d 1347, 1371 (2d Cir. 1994); United States v. Romulus, 949 F.2d 713,

716 (4th Cir. 1991); United States v. Doe, 882 F.2d 926, 927–28 (5th Cir. 1989).

57 United States v. Eric B., 86 F.3d 869, 873 (9th Cir. 1996); United States v. Three Male Juveniles, 49 F.3d 1058, 1063

(5th Cir. 1995); United States v. Doe, 642 F.2d 1206, 1207–08 (10th Cir. 1981).

58 United States v. Juvenile Male, 74 F.3d 526, 528–29 (4th Cir. 1996).

59 United States v. Doe, 149 F.3d 945, 949–50 (9th Cir. 1998) (released to half-way house pending trial); United States

v. Cuomo, 525 F.2d 1285, 1290–91 (5th Cir. 1976) (released to parents under restrictive bail conditions).

60 United States v. Doe, 49 F.3d 859, 865–66 (2d Cir. 1995).

61 United States v. Juvenile Male, 939 F.2d 321, 324 (6th Cir. 1991).

62 United States v. Doe, 226 F.3d 672, 681 (6th Cir. 2000).

63 United States v. Doe, 94 F.2d 532, 535–36 (9th Cir. 1996).

64 United States v. David A., 436 F.3d 1201, 1207 (10th Cir. 2006); United States v. A.R., 203 F.3d 955, 963–64 (6th

Cir. 2000); United States v. Sealed Juvenile 1, 192 F.3d 488, 491–92 (5th Cir. 1999); United States v. Wong, 40 F.3d

1347, 1371 (2d Cir. 1994); United States v. Romulus, 949 F.2d 713, 716 (4th Cir. 1991).

65 United States v. Female Juvenile, A.F.S., 377 F.3d 27, 37–38 (1st Cir. 2004).

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Initial Stages of Federal Adjudication

Federal law permits federal proceedings against a federal juvenile offender when there is no

realistic state alternative or when the juvenile is accused of a serious federal crime. The

government must certify that it has elected a federal forum. The certificate must assert that either

(1) the state courts are unwilling or unable to proceed against the juvenile for the

misconduct in question; or

(2) the juvenile programs of the state are unavailable or inadequate; or

(3) the offense is a drug dealing or drug smuggling violation, possession of an

undetectable firearm, or a felony and crime of violence and that a substantial federal

interest exists warranting the exercise of federal jurisdiction.66

“Because certification requirements are disjunctive, a single basis for certification establishes

jurisdiction.”67 Although the statute calls for certification by the Attorney General, the authority

has been redelegated to the various United States Attorneys.68 A facially adequate certification is

generally thought to be beyond judicial review in the absence of evidence of bad faith.69

Certification is jurisdictional, however, so that certification by an Assistant United States

Attorney without evidence of the United States Attorney’s approval is insufficient.70 The

government need not certify the want of, or unwillingness to exercise, tribal as well as state

jurisdiction.71 “The Attorney General’s certification of a ‘substantial federal interest’ is an act of

prosecutorial discretion that is shielded from judicial review.”72

The term “crime of violence” appears, undefined, several times in section 5032. Elsewhere, the

term is defined using an “elements” clause (“The term ‘crime of violence’ means–(a) an offense

66 18 U.S.C. § 5032[¶1] (“A juvenile alleged to have committed an act of juvenile delinquency . . . shall not be

proceeded against in any court of the United States unless the Attorney General, after investigation, certifies to the

appropriate district court of the United States that (1) the juvenile court or other appropriate court of a State does not

have jurisdiction or refuses to assume jurisdiction over said juvenile with respect to such alleged act of juvenile

delinquency, (2) the State does not have available programs and services adequate for the needs of juveniles, or (3) the

offense charged is a crime of violence that is a felony or an offense described in section 401 of the Controlled

Substances Act (21 U.S.C. 841), or section 1002(a), 1003, 1005, 1009, or 1010(b)(1), (2), or (3) of the Controlled

Substances Import and Export Act (21 U.S.C. 952(a), 953, 955, 959, 960(b)(1), (2), (3)), section 922(x) or section

924(b), (g), or (h) of this title, and that there is a substantial Federal interest in the case or the offense to warrant the

exercise of Federal jurisdiction.”) (full text appears as an addendum to this report).

67 United States v. JDT, 762 F.3d 984, 993 (9th Cir. 2014).

68 28 C.F.R. § 0.57; JDT, 762 F.3d at 993; United States v. Sealed Juvenile 1, 225 F.3d 507, 509 (5th Cir. 2000); United

States v. White, 139 F.3d 998, 1000 (4th Cir. 1998).

69 JDT, 762 F.3d at 992; United States v. Doe, 226 F.3d 672, 676–78 (6th Cir. 2000); United States v. Smith, 178 F.3d

22, 25 (1st Cir. 1999); United States v. Juvenile No. 1, 118 F.3d 298, 304–05 (5th Cir. 1997); United States v. Juvenile

Male J.A.J., 134 F.3d 905, 906–09 (8th Cir. 1998); United States v. Jarrett, 133 F.3d 519, 538 (7th Cir. 1998); In re

Sealed Case, 131 F.3d 208, 211–14 (D.C. Cir. 1997); United States v. I.D.P., 102 F.3d 507, 511 (11th Cir. 1996);

United States v. Vacier, 515 F.2d 1378, 1380–81 (2d Cir. 1975); contra United States v. T.M., 413 F.3d 420, 423–24

(4th Cir. 2005); see also Matthew Dexler, Note, Judicial Review & the Policy of Federal Abstention: A Juvenile’s Right

to Ensure the Existence of a “Substantial Federal Interest,” 98 MICH. L. REV. 1007 (2000).

70 Sealed Juvenile 1, 225 F.3d at 509; United States v. Angelo D., 88 F.3d 856, 859–60 (10th Cir. 1996) (certification

by principal assistant authorized by the United States Attorney to act for him in his absence); United States v. F.S.J.,

265 F.3d 764, 768 (9th Cir. 2001) (same).

71 United States v. Male Juvenile (Pierre Y.), 280 F.3d 1008, 1014–16 (9th Cir. 2002).

72 United States v. Female Juvenile, A.F.S., 377 F.3d 27, 32 (1st Cir. 2004); cf. United States v. Diggins, 36 F.4th 302,

318 (1st Cir. 2022) (collecting circuit cases in accord).

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that has as an element, the use, attempted use, or threatened use of physical force against the

person or property of another”)73 or a “risk” clause (“[an] offense . . . that, by its nature, involves

a substantial risk that physical force against the person or property of another may be used in the

course of committing the offense”).74 In one instance, section 5032, itself, uses an “element”

clause and a “risk” clause rather than the term “crime of violence.”

In other contexts, The Supreme Court has declared the identical language in the “risk” clause or

“residual” clause unconstitutionally vague and inoperable.75 In the context of section 5032,

prosecutors have relied on the elements clause and avoided the risk clause.76

If the government decides against federal proceedings, the juvenile must either be released or,

under the appropriate conditions, turned over to state authorities.77 Otherwise, the government

begins the proceedings by filing an information and a statement of the juvenile’s past record with

the district court.78 Most courts appear to believe that they have no jurisdiction to proceed against

a juvenile until they receive evidence of the juvenile’s prior record.79 The government may

proceed against a juvenile as an adult only if the child insists, or pursuant to a juvenile court

transfer.80

Transfers

There are two types of transfers to proceed against a juvenile as an adult under 18 U.S.C. § 5032,

mandatory and discretionary. A transfer is mandatory in the case of a violent felony, drug

trafficking, drug smuggling, or arson, allegedly committed by a juvenile 16 years of age or older

who has previously been found to have committed comparable misconduct.81 As the language

73 18 U.S.C. §§ 16(a), 924(c)(3)(A).

74 Id. §§ 16(b), 924(c)(3)(B).

75 Johnson v. United States, 576 U.S. 591, 606 (2015); Sessions v. Dimaya, 138 S. Ct. 1204, 1223 (2018).

76 United States v. D.D.B., 903 F.3d 684, 686 n.1 (3d Cir. 2020) (“Section 5032 also contains what has been called in

other contexts, a ‘residual clause’ . . . The government does not rely on this clause . . . .”); United States v. Rogers, 179

F. Supp. 3d 881, 886 (E.D. Wis. 2016) (“[I]n light of the legal developments in Johnson . . . the government does not

rely . . . on the residual clause embodied in Section 5032. . . .”); David Jaffe & Darcie McElwee, Federally Prosecuting

Juvenile Gang Members, 68 DOJ. FED. L. & PRAC. 15, 23–24 (2020).

77 18 U.S.C. § 5001.

78 Id. § 5032[¶10].

79 United States v. Woods, 827 F.3d 712, 715 (7th Cir. 2016); Impounded (Juvenile I.H., Jr.), 120 F.3d 457, 460 (3d

Cir. 1997); United States v. Wong, 40 F.3d 1347, 1369–70 (2d Cir. 1994); United States v. Parker, 956 F.2d 169, 170

(8th Cir. 1992); contra United States v. Doe, 366 F.3d 1069, 1075–77 (9th Cir. 2004).

80 18 U.S.C. § 5032[¶4]

81 Id. (“. . . However, a juvenile who is alleged to have committed an act after his sixteenth birthday which if committed

by an adult would be a felony offense that has as an element thereof the use, attempted use, or threatened use of

physical force against the 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 committing the offense, or would be an offense described in section 32,

81, 844(d), (e), (f), (h), (i) or 2275 of this title, subsection (b)(1)(A), (B), or (C), (d), or (e) of section 401 of the

Controlled Substances Act, or section 1002(a), 1003, 1009, or 1010(b)(1), (2), or (3) of the Controlled Substances

Import and Export Act (21 U.S.C. 952(a), 953, 959, 960(b)(1), (2), (3)), and who has previously been found guilty of

an act which if committed by an adult would have been one of the offenses set forth in this paragraph or an offense in

violation of a State felony statute that would have been such an offense if a circumstance giving rise to Federal

jurisdiction had existed, shall be transferred to the appropriate district court of the United States for criminal

prosecution. . . .”).

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suggests, the prior felony “conviction” may be either a conviction as an adult or a finding of

delinquency based on conduct that would be felonious if committed by an adult.82

Charges that would support a mandatory transfer if brought against a 16-year-old recidivist may

be used to trigger a discretionary transfer if the juvenile is 15 or older regardless of his or her

prior record;83 discretionary transfers are also possible for juveniles 13 or older in some cases of

assault, homicide, or robbery.84

At least one federal appellate court has rejected contentions that mandatory transfers constitute an

unconstitutional denial of either due process or equal protection.85 Aside from a denial of a claim

of ineffective assistance of counsel, questions of the constitutionality of the underlying prior

conviction or determination may not be raised at the transfer hearing.86

When the transfer is discretionary, juvenile adjudication is presumed appropriate,87 unless the

government can establish its case for a transfer by a preponderance of the evidence.88 Section

5032 lays out the factors for the court’s consideration when it is asked to exercise its discretion to

transfer a juvenile in the interest of justice for trial as an adult. “In making its determination, the

court must consider six factors: (1) the age and social background of the juvenile; (2) the nature

of the alleged offense; (3) the extent and nature of the juvenile’s prior delinquency record; (4) the

juvenile’s present intellectual development and psychological maturity; (5) the nature of past

treatment efforts and the juvenile’s response to them; and (6) the availability of programs

designed to treat the juvenile’s behavioral problems.”89 The purpose of the exercise is to

82 United States v. N.J.B., 104 F.3d 630, 636–37 (4th Cir. 1997); United States v. Juvenile Male #1, 47 F.3d 68, 69 (2d

Cir. 1995).

83 18 U.S.C. § 5032[¶4] (“A juvenile who is alleged to have committed an act of juvenile delinquency and who is not

surrendered to State authorities shall be proceeded against under this chapter unless he has requested in writing upon

advice of counsel to be proceeded against as an adult, except that, with respect to a juvenile fifteen years and older

alleged to have committed an act after his fifteenth birthday which if committed by an adult would be a felony that is a

crime of violence or an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), or section

1002(a), 1005, or 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, 959), or section

922(x) of this title, or in section 924(b), (g), or (h) of this title, criminal prosecution on the basis of the alleged act may

be begun by motion to transfer of the Attorney General in the appropriate district court of the United States, if such

court finds, after hearing, such transfer would be in the interest of justice. . . .”).

84 Id. (“. . . In the application of the preceding sentence [relating to the transfers of juveniles 15 or older], if the crime of

violence is an offense under section 113(a), 113(b), 113(c), 1111, 1113, or, if the juvenile possessed a firearm during

the offense, section 2111, 2113, 2241(a), or 2241(c), ‘thirteen’ shall be substituted for ‘fifteen’ and ‘thirteenth’ shall be

substituted for ‘fifteenth’. . . .”).

85 United States v. Juvenile, 228 F.3d 987, 990 (9th Cir. 2000).

86 United States v. M.C.E., 232 F.3d 1252, 1257 (9th Cir. 2000).

87 United States v. Doe, 58 F.4th 1148, 1156 (10th Cir. 2023); United States v. J.C.D., 861 F.3d 1, 4 (1st Cir. 2017);

Female Juvenile, A.F.S., 377 F.3d at 32; United States v. Ramirez, 297 F.3d 185, 192 (2d Cir. 2002); United States v.

Anthony Y., 172 F.3d 1249, 1252 (10th Cir. 1999); United States v. A.R., 203 F.3d 955, 961 (6th Cir. 2000); United

States v. A.R., 38 F.3d 699, 706 (3d Cir. 1994).

88 Doe, 58 F.4th at 1156; United States v. Juvenile Male, 889 F.3d 450, 453 (8th Cir. 2018); United States v. Under

Seal, 819 F.3d 715, 718 (4th Cir. 2016); United States v. Sealed Appellant 1, 591 F.3d 812, 820 (5th Cir. 2009); United

States v. David A, 436 F.3d 1201, 1214 (10th Cir. 2006); United States v. Brandon P., 387 F.3d 969, 977 (9th Cir.

2004); Female Juvenile, A.F.S., 377 F.3d at 32; Ramirez, 297 F.3d at 192; United States v. I.D.P., 102 F.3d 507, 513

(11th Cir. 1996); United States v. T.F.F., 55 F.3d 1118, 1122 (6th Cir. 1995); A.R., 38 F.3d at 703.

89 Doe, 58 F.4th at 1156-57; Juvenile Male, 889 F.3d at 453 (citing 18 U.S.C. § 5032[¶5]); United States v. Woods, 827

F.3d 712, 715 (7th Cir. 2016).

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determine whether the prospects for the juvenile’s rehabilitation are outweighed by the risk of

harm that he poses if not tried as an adult.90

A court need not give the factors equal weight as long as the court documents its consideration of

each.91 The age factor compels the court to consider a juvenile’s age both at the time of the

misconduct and at the time of the transfer hearing.92 “The older a juvenile delinquent is both at

the time of the alleged offense and at the time of transfer hearing, the more the juvenile

defendant’s age weighs in favor of transfer.”93 In considering the child’s social background, the

courts cite the child’s family life, both positive and negative, and other social interactions.94

The second factor calls for an assessment of both the seriousness of the misconduct alleged and

the juvenile’s role in the transgression.95 The allegations are taken as true for purposes of the

assessment,96 and allegations of serious offenses argue strongly for transfer.97

90 Doe, 58 F.4th at 1157; United States v. James, 556 F.3d 1062, 1066 (9th Cir. 2009); United States v. SLW, 406 F.3d

991, 993 (8th Cir. 2005); United States v. Male Juvenile E.L.C., 396 F.3d 458, 461 (1st Cir. 2005).

91 Doe, 58 F.4th at 1157; Juvenile Male, 889 F.3d at 453; Sealed Appellant 1, 591 F.3d at 820; Anthony Y., 172 F.3d at

1253; United States v. Wilson, 149 F.3d 610, 614 (7th Cir. 1998); United States v. Wellington, 102 F.3d 499, 506 (11th

Cir. 1996); United States v. Nelson, 90 F.3d 636, 640 (2d Cir. 1996); United States v. Juvenile Male, 40 F.3d 841, 845–

46 (6th Cir. 1994); A.R., 38 F.3d at 705.

92 United States v. Male, 610 F. Supp. 3d 474, 484 (E.D.N.Y. 2022) (citing United States v. Nelson, 68 F.3d 583, 589

(2d Cir. 1995)); United States v. J.J.P., 434 F. Supp. 3d 372, 377 (D. Md. 2020).

93 United States v. Juvenile Male, 316 F. Supp. 3d 553, 561 (E.D.N.Y. 2018); see also J.C.D., 861 F.3d at 3 (“J.C.D.’s

advanced age (seventeen when he allegedly committed the carjacking) favored transfer. . . .”); J.J.P., 434 F. Supp. 3d at

377.

94 E.g., Juvenile Male, 889 F.3d at 453 (“It considered A.M.’s assertions of his upstanding social background, but found

that there was no evidence to support those assertions and that photos of A.M. flashing gang symbols and handling

firearms undercut them.”); J.C.D., 861 F.3d at 3 (“J.C.D.’s social background, and particularly the abuse he suffered as

a child, disfavored transfer.”); Woods, 827 F.3d at 718 (citing difficulties at home and in school, history of drug

possession, and long association with a gang).

95 “In considering the nature of the offense, as required by this paragraph, the court shall consider the extent to which

the juvenile played a leadership role in an organization, or otherwise influenced other persons to take part in criminal

activities, involving the use or distribution of controlled substances or firearms. Such a factor, if found to exist, shall

weigh in favor of a transfer to adult status, but the absence of this factor shall not preclude such a transfer.” 18 U.S.C. §

5032[¶5]; Juvenile Male, 889 F.3d at 453; J.C.D., 861 F.3d at 3 (“The Magistrate Judge noted the seriousness of the

alleged offense, recounting J.C.D.’s underlying conduct and concluding that ‘the evidence does suggest that J.C.D. was

the primary aggressor; he carried a gun, he drove, he robbed, and, perhaps worst of all, he threatened.’”); United States

v. Male, 610 F. Supp. 3d 474, 489 (E.D.N.Y. 2022) (“The defendant is charged with two premeditated brutal murders

committed on behalf of the MS-13 gang.”): Woods, 827 F.3d at 718 (“[D]uring the second robbery, Woods shot the

store clerk multiple times. . . .”).

96 Id.; United States v. Y.C.T., Male Juvenile, 805 F.3d 356, 358 (1st Cir. 2015).

97 J.C.D., 861 F.3d at 4 (upholding the district court’s transfer order following a magistrate’s finding that “only the

nature of the offense weighs strongly in favor of transfer,’ while ‘[t]he remaining statutory factors weigh against it or

are neutral”); United States v. Sealed Appellant 1, 591 F.3d 812, 820 (1st Cir. 2009) (“This circuit has made clear that

the seriousness of the offense in particular may be given more weight than other factors. . . .”); Male, 610 F. Supp. 3d at

489 (“[T]he Court may weigh this factor more heavily than any other when the alleged offense is particularly

serious.”); J.J.P., 434 F. Supp. 3d at 378.

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The third factor requires the court to take into account “the extent and nature of the juvenile’s

prior delinquency record.”98 This may include the juvenile’s arrest record in some instances.99 A

clean record, however, is no bar to a transfer,100 but may weigh against a transfer.101

The fourth factor, the juvenile’s “intellectual development and psychological maturity,” is

essentially a matter of whether the juvenile has the mind of a child at the time of the transfer

petition, indicating a receptivity to rehabilitation.102 The factor may argue strongly for the transfer

of a juvenile wise beyond his years.103 Moreover, with age, the weight the courts give to average

intellectual development and maturity begins to slip away.104 In the case of older juveniles, the

courts may find evidence of reduced, or even greatly reduced, development and maturity

insufficient to overcome the counterweight of a serious offense.105

The fourth factor attempts to predict whether the juvenile will be receptive to rehabilitative

efforts. The fifth factor evaluates whether the juvenile has been receptive to past rehabilitative

98 18 U.S.C. § 5032[¶5]; e.g., Woods, 827 F.3d at 718 (noting extensive and escalating involvement with the juvenile

system).

99 Male, 610 F. Supp. 3d at 490 n.12 (citing United States v. Juvenile LWO, 160 F.3d 1179, 1183–84 (8th Cir. 1998),

and United States v. Wilson, 149 F.3d 610, 613 (7th Cir. 1998), as evidence of a split in the circuits).

100 United States v. Juvenile Male, 269 F. Supp. 3d 29, 41–42 (E.D.N.Y. 2017) (citing United States v. Juvenile Male,

554 F.3d 456, 468–70 (4th Cir. 2009), in which case the Fourth Circuit affirmed the district court’s transfer order

relating to a juvenile with no prior record); see also United States v. Female, 581 F. Supp. 3d 482, 486 (E.D.N.Y.

2022).

101 J.J.P., 454 F. Supp. 3d at 379.

102 18 U.S.C. § 5032[¶5].

103 E.g., Juvenile Male, 269 F. Supp. 3d at 42–43 (“[T]he Court finds that the defendant’s intellectual development and

psychological maturity … weigh strongly in favor of transfer. . . . Dr. Bardey reported that the defendant (1) exhibited

thought processes that ‘were logical and goal-directed,’ displayed no evidence of a thought disorder, psychotic

symptoms, or symptoms of anxiety or depression; (2) appeared to be ‘of average intelligence and was grossly intact

cognitively;’ (3) ‘displayed a level of psychological and emotional maturity beyond that of the average teenager of the

same age;’ and (4) ‘deviate[s] from the neuropsychological makeup of an immature and impulsive juvenile’ in regards

to his actions, the complexity of his decision making, his ability to synthesize information from different sources, and

his planning ability.”).

104 United States v. Woods, 827 F.3d 712, 718 (7th Cir. 2016) (in the case of a juvenile nearly 21 years of age at the

time of the transfer petition, the district “court noted that Woods had completed his GED and that there was no

indication of intellectual or psychological deficits,” and the appellate court found “no abuse of discretion in the court

evaluating this factor as neutral”); United States v. J.J., 704 F.3d 1219, 1222–24 (9th Cir. 2013) (affirming the transfer

order of a juvenile, 17 years of age at the time of the offense, after “the witnesses testified that Defendant appeared to

be of average intelligence and had the maturity typical of someone in his late teens”).

105 United States v. J.C.D., 861 F.3d 1, 3–6 (1st Cir. 2017) (in the case of a juvenile “nearly eighteen” at the time of the

carjacking, the appellate court affirming a transfer order issued on the basis of the seriousness of the offense in spite of

a finding that the juvenile lacked “a sense of right and wrong and logic mediated by judgment”); United States v.

Sealed Appellant 1, 591 F.3d 812, 822 (5th Cir. 2009) (finding the district court did not err in ordering the transfer of a

juvenile charged with armed carjacking even though the district court found that the juvenile “was suffering from

Conduct Disorder, PTSD, a learning disability, and had an IQ of 77, which was borderline mentally retarded or in the

‘lowest range of normal”).

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efforts.106 Sometimes, the factor carries no weight when there have been no past efforts;107 on

other occasions, the want of past treatment may favor transfer.108

The final factor is the availability of treatment programs for the individual either as a juvenile or

an adult.109 The juvenile’s age or offense may make him ineligible for programs in some

instances.110

Transfer hearings are considered akin to preliminary hearings. Consequently, other than the rules

of privilege, the Federal Rules of Evidence, including those governing the use of hearsay, do not

apply.111 A juvenile’s statements “prior to or during a transfer hearing” may not be admitted in

subsequent criminal proceedings.112 Thus, a juvenile may be required to submit to a psychiatric

examination in connection with the hearing, and the court may base its transfer determinations on

the results without intruding upon the juvenile’s Fifth Amendment privilege against selfincrimination.113 The court’s determination of whether transfer is appropriate is immediately

appealable under an abuse of discretion standard.114

The Supreme Court’s decision in Miller v. Alabama,115 barring imposition of a sentence of life

imprisonment without parole for an offense committed while a juvenile, precludes a transfer

relating to an offense punishable only by death or life imprisonment.116 It does not preclude a

transfer with respect to an offense punishable alternatively by imprisonment for a term of

years.117 A court may order a juvenile transferred whose alleged misconduct carries both

permissible and impermissible adult sentences.118

106 18 U.S.C. § 5032[¶5]; e.g., Woods, 827 F.3d at 718 (“The district court noted that ’the juvenile system has made

numerous efforts to assist the Defendant, with little or no success.’ The district court noted that Woods responded

poorly to the various programs. The court also stressed that Woods’s escalating behavior demonstrated that the

numerous prior attempts to rehabilitate him did not have any positive influence and accordingly found this factor

weighed in favor of transfer.”).

107 United States v. Juvenile Male, 554 F.3d 456, 469 (4th Cir. 2009); United States v. Juvenile Male, 269 F. Supp. 3d

29, 43 (E.D.N.Y. 2017).

108 United States v. Male, 610 F. Supp. 3d 474, 493 (E.D.N.Y. 2022) (“In sum, because the defendant has not made a

demonstrable commitment to treatment efforts, and because there are indicators that there are impediments to

rehabilitation (such as [a] disciplinary infraction relating to his alleged ongoing association with the MS-13), the Court

finds that this factor weighs slightly in favor of transfer.”).

109 18 U.S.C. § 5032[¶5].

110 United States v. Doe, 58 F.4th 1148, 1158 (10th Cir. 2023) (“The three juvenile facilities have voluntary treatment

options, but juveniles must leave the facility on their twenty-first birthday.”); United States v. Juvenile Male, 889 F.3d

450, 453 (8th Cir. 2018) (The court “also considered the fact that because A.M. was now eighteen there were no longer

juvenile programs designed to treat his behavioral needs.”); Woods, 827 F.3d at 718 (no juvenile programs because of

offense and age).

111 FED. R. EVID. 1101(d)(3); Juvenile Male, 554 F.3d at 459–60; United States v. SLW, 406 F.3d 991, 995 (8th Cir.

2005); In re A.M., 34 F.3d 153, 161–62 (3d Cir. 1994); United States v. Doe, 871 F.2d 1248, 1255 (5th Cir. 1989);

United States v. C.P.A., 572 F. Supp. 2d 1122, 1124–125 (D.N.D. 2008).

112 18 U.S.C. 5032[¶8].

113

United States v. Mitchell H., 182 F.3d 1034, 1035–36 (9th Cir. 1999); United States v. A.R., 38 F.3d 699, 703 (3d

Cir. 1994).

114 United States v. Woods, 827 F.3d. 712, 717 & n.2 (7th Cir. 2016); United States v. Y.C.T., Male Juvenile, 805 F.3d

356, 357, 358 (1st Cir. 2015); United States v. Juvenile Male, 554 F.3d 456, 463–65 (4th Cir. 2009).

115 567 U.S. 460 (2012).

116 United States v. Under Seal, 819 F.3d 715, 728 (4th Cir. 2016).

117 Cf. United States v. Jefferson, 816 F.3d 1016, 1017–18 (8th Cir. 2016) (affirming a district court decision to reduce

a pre-Miller sentence of mandatory life imprisonment to imprisonment for 50 years).

118 United States v. Doe, 58 F.4th 1148, 1155 (10th Cir. 2023) (“Doe’s argument is unripe [for adjudication] because

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Delinquency Hearings

In the absence or failure of a government transfer motion and unless the juvenile insists on an

adult trial, the district court, at its discretion, conducts a delinquency hearing “at any time and

place within the district, in chambers or otherwise.”119 Neither the right to grand jury

indictment120 nor to a jury trial is constitutionally required.121 The Constitution demands many of

the other features of an adult criminal trial, however, including notice of charges, right to counsel,

privilege against self-incrimination, right to confrontation and cross examination, proof beyond a

reasonable doubt, protection against double jeopardy,122 and application of the Fourth

Amendment exclusionary rule.123

Disposition

Upon a finding of delinquency, the court schedules either a sentencing hearing or a hearing in

anticipation of a commitment for examination prior to sentencing.124 At sentencing, the court may

dispose of a juvenile delinquency case by suspending sentence, by ordering restitution or

probation, or by committing the juvenile to the custody of the Attorney General for detention.125

The Sentencing Guidelines do not apply to detention ordered pursuant to federal juvenile

delinquency proceedings.126 Some recent cases reflect the view that a sentencing court need not

opt for the least-restrictive disposition needed to secure the juvenile’s rehabilitation.127

her potential punishments rely upon ‘contingent future events that may not occur as anticipated or indeed may not

occur at all.’ Doe could be acquitted, be convicted of second second-degree murder [which carries a permissible

sentence], plea to a lesser-included offense, or even be convicted of first-degree murder but receive a lower sentence.”)

(quoting Texas v. United States, 523 U.S. 296, 300 (1998)).

119 18 U.S.C. § 5032[¶3]. District courts have discretion to regulate access to juvenile proceedings on a case by case

basis. United States v. Three Juveniles, 61 F.3d 86, 92 (1st Cir. 1995); United States v. A.D., 28 F.3d 1353, 1359–62

(3d Cir. 1994).

120 18 U.S.C. § 5032[¶3] (“. . . The Attorney General shall proceed by information. . . .”); see also United States v. C.S.,

968 F.3d 237, 242 n.2 (3d Cir. 2020); United States v. Juvenile, 228 F.3d 987, 990 (9th Cir. 2000); United States v.

Welch, 15 F.3d 1202, 1208–09 n.9 (1st Cir. 1993); United States v. Hill, 538 F.2d 1072, 1076 (4th Cir. 1976).

121 McKeiver v. Pennsylvania, 403 U.S. 528, 545 (1975) (plurality op.) (“[W]e conclude that trial by jury in the

juvenile court’s adjudicative stage is not a constitutional requirement.”); C.S., 968 F.3d at 242 n.2; United States v.

Male Juvenile (Pierre Y.), 280 F.3d 1008, 1021 (9th Cir. 2002); Welch, 15 F.3d at 1208–09 n.9; United States v.

Juvenile Male C.L.O., 77 F.3d 1075, 1077 (8th Cir. 1996); cf. Bucio v. Sutherland, 674 F. Supp. 2d 882, 949 (S.D.

Ohio 2009); United States v. Miguel, 338 F.3d 995, 1004 (9th Cir. 2003).

122 Schall v. Martin, 467 U.S. 253, 263 (1984) (citing In re Gault, 387 U.S. 1, 31–57 (1967); In re Winship, 397 U.S.

358, 365–67 (1970); Breed v. Jones, 421 U.S. 519 (1971)); see also United States v. Doe, 226 F.3d 672, 680 (6th Cir.

2000) (proof beyond a reasonable doubt).

123 United States v. Doe, 801 F. Supp. 1562, 1568 (E.D. Tex. 1992).

124 18 U.S.C. § 5037.

125 Id.

126 U.S. Sent’g Guidelines Manual § 1B1.12 (U.S. Sent’g Comm’n 2021); United States v. D.B., 61 F.4th 608, 614 (8th

Cir. 2023).

127 United States v. A.S., 939 F.3d 1063, 1084–85 (10th Cir. 2019) (“A.S.’s least-restrictive disposition rubric primarily

stems from the decisions of the Ninth Circuit. . . . However, we are unpersuaded. . . . We are unaware of any other

circuit that has embraced the Ninth Circuit’s approach. And two other circuits–the First and the Eighth–have

affirmatively rejected it.”) (citing United States v. Juvenile, 347 F.3d 778 (9th Cir. 2003); United States v. Patrick V.,

359 F.3d 3, 10–12 (1st Cir. 2004); United States v. M.R.M., 513 F.3d 866, 869 (8th Cir. 2008)).

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Unless the court suspends sentence, section 5037 establishes a series of time limits that restrict

the court’s authority when it orders detention,128 when it imposes or revokes probation,129 and

when it imposes or revokes a period of juvenile delinquent supervision.130

Section 5037(c) provides different detention limitations depending upon whether the dispositional

hearing occurs when the individual is under 18 years of age or is between 18 and 21 years of

age.131 In the case of a juvenile under 18, the court may order a term of detention no longer than

the shorter of (A) the date the juvenile will turn 21; (B) the term at the top of the sentencing range

under the Sentencing Guidelines that would apply had the juvenile been an adult; or (C) the

maximum term of imprisonment that would apply had the juvenile been an adult.132

The detention limits for juveniles between the ages of 18 and 21 depend on the seriousness of the

misconduct that led to the delinquency determination. If the misconduct would have been

punishable by imprisonment for a maximum of 12 years or more, the term of detention may be no

longer than the sooner of (i) five years, or (ii) the top of the Sentencing Guideline range

applicable to adults under comparable circumstances.133 If less serious misconduct led to the

delinquency determination, the court may order detention for no longer than the sooner of (i)

three years; (ii) the top of the Sentencing Guideline range; or (iii) the maximum term of

imprisonment that an adult would have faced under the circumstances.134

The time limits for probation are comparable. The court may set the term of probation for a

juvenile under 18 years of age at no longer than the sooner of (A) the date on which the juvenile

will turn 21 years of age; or (B) five years (or one year if the misconduct in an adult would be

punishable by imprisonment for not more than five days).135 For juveniles between the ages of 18

and 21, the limit is the shorter of (A) three years; or (B) one year (if the misconduct in an adult

would be punishable by imprisonment for not more than five days).136 The adult mandatory and

discretion condition statutes apply, including the requirement that any discretion conditions

involve only such deprivations of liberty or property as are reasonably necessary to comply with

statutory sentencing principles.137

The court may later revise or revoke a juvenile’s probation and order the juvenile’s detention for

violation of his probation conditions.138 Detention authority following revocation mirrors the

court’s initial detention authority with two exceptions. First, regardless of the juvenile’s age at the

time of revocation, the court is initially governed by the time limits that apply to the detention of

juveniles between the ages of 18 and 21.139 Second, an individual who is 21 years of age or older

may not be detained beyond the age of 23, or beyond the age of 25 if the misconduct is

128 18 U.S.C. § 5037(c).

129 Id. § 5037(b).

130 Id. § 5037(d).

131 Id. §§ 5037(c)(1), (2).

132 Id. §§ 5037(c)(1)(A), (B), (C); e.g., United States v. Sealed Juvenile, 781 F.3d 747, 750 (5th Cir. 2015).

133 18 U.S.C. §§ 5037(c)(2)(A)(i), (ii), 3581(b); e.g., United States v. J.A.S., Jr., 862 F.3d 543, 544 (6th Cir. 2017).

134 18 U.S.C. §§ 5037(c)(2)(B)(i), (ii), (iii).

135 Id. §§ 5037(b)(1)(A), (B), 3561(c).

136 Id. §§ 5037(b)(2)(A), (B), 3561(c).

137 Id. §§ 5037(b), 3563.

138 Id. §§ 5037(b), 3563(c).

139 “. . . The term of official detention authorized upon revocation of probation shall not exceed the terms authorized in

section 5037(c)(2)(A) and (B) . . .” Id. § 5037(b).

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punishable by imprisonment for 12 years or more.140 Subject to those restrictions, when the

misconduct that resulted in the delinquency determination would be punishable by a maximum

term of imprisonment of 12 years or more, the court may order a term of detention no longer than

the shorter of (i) five years; or (ii) the term at the top of the sentencing range under the

Sentencing Guidelines that would apply had the juvenile been an adult.141 For less serious forms

of misconduct, the limit is the shorter of (i) three years; (ii) the term at the top of the sentencing

range under the Sentencing Guidelines that would apply had the juvenile been an adult; or (iii) the

maximum term of imprisonment that would apply had the juvenile been an adult.142

When a court orders juvenile detention, it may also impose a term of juvenile delinquent

supervision to be served after the individual’s release from detention.143 Juvenile delinquent

supervision has its own time limits and its own set of conditions. The conditions are the same as

those available when the court sentences a juvenile to probation.144 The initial term of juvenile

delinquent supervision may not exceed the juvenile’s 21st birthday if the individual is under the

age of 18 when the detention order is issued.145 If the individual is between 18 and 21 when the

detention order is issued, the initial time limits for supervision are those that apply to detention,

less the time served in detention.146 Thus, when the misconduct that resulted in the delinquency

determination would be punishable by a maximum term of imprisonment of 12 years or more, the

court may order a term of supervision no longer than the shorter of (i) five years; or (ii) the term

at the top of the sentencing range under the Sentencing Guidelines that would apply had the

juvenile been an adult.147 For less serious forms of misconduct, the limit is the shorter of (i) three

years; (ii) the term at the top of the sentencing range under the Sentencing Guidelines that would

apply had the juvenile been an adult; or (iii) the maximum term of imprisonment that would apply

had the juvenile been an adult.148

Violation of the conditions of supervision may lead to further terms of detention and juvenile

delinquent supervision.149 The maximum term of detention following revocation of a term of

supervision is the same as the maximum term of detention following revocation of probation, less

140 “. . . A disposition of a juvenile who is over the age of 21 years shall be in accordance with the provisions of section

5037(c)(2), except that in the case of a juvenile who if convicted as an adult would be convicted of a Class A, B, or C

felony, no term of official detention may continue beyond the juvenile’s 26th birthday, and in any other case, no term

of official detention may continue beyond the juvenile’s 24th birthday. . .” Id. § 5037(b); see id., § 3581(b) (defining

class A, B, and C felonies).

141 Id. §§ 5037(c)(2)(A)(i), (ii), 3581(b).

142 Id. § 5037(c)(2)(B)(i), (ii), (iii).

143 Id. § 5037(b), (d)(1).

144 Id. § 5037(d)(3); e.g., United States v. Sealed Juvenile, 781 F.3d 747, 750–51 (5th Cir. 2015) (“This Court has

recognized that district courts have broad discretion in imposing conditions of supervised release, subject to statutory

requirements. Under 18 U.S.C. § 3563, a court may provide discretional conditions ‘to the extent that such conditions

are reasonably related to the factors set forth in section 3553(a) and (a)(2) and to the extent that such conditions involve

only such deprivations of liberty or property as are reasonably necessary for the purposes indicated in section

3553(a)(2).’”).

145 18 U.S.C. § 5037(d)(2)(A).

146 Id. § 5037(c)(A), (B), (d)(2)(B).

147 Id. §§ 5037(c)(2)(A)(i), (ii), 3581(b).

148 Id. § 5037(c)(2)(B)(i), (ii), (iii).

149 Id. § 5037(d)(4), (5). Revocation of the term of supervision is mandatory if the individual is 21 years of age or older

and violated a condition of supervision relating to possession of a controlled substance or a firearm or failure to take

and pass a drug test. Id. §§ 5037(d)(5), 3565(b).

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time served in detention.150 That is, when the misconduct that resulted in the delinquency

determination would be punishable by a maximum term of imprisonment of 12 years or more, the

court may order a term of supervision no longer than the shorter of (i) five years; (ii) the term at

the top of the sentencing range under the Sentencing Guidelines that would apply had the juvenile

been an adult; or (iii) the time before which the individual turns 26 years of age.151 For less

serious forms of misconduct, the limit is the shorter of (i) three years; (ii) the term at the top of

the sentencing range under the Sentencing Guidelines that would apply had the juvenile been an

adult; (iii) the maximum term of imprisonment that would apply had the juvenile been an adult;

or (iv) the time before which the individual turns 24.152

Section 5037(d)(6) is somewhat cryptic about the term limits on the juvenile delinquent

supervision imposed after revocation. It makes no mention of the limits in place when the

individual is less than 18 years of age or between 18 and 21 years of age. As for individuals over

21 years of age, it declares that the term of juvenile delinquent supervision “shall be in

accordance with the provisions of section 5037(d)(1),” with the exception of the usual bars on

supervision over individuals once they reach either 24 or 26 years of age depending on the

seriousness of their original misconduct.

The difficulty stems in part from the fact that section 5037(d)(1) says nothing about time limits. It

merely states that “[t]he court, in ordering a term of official detention, may include the

requirement that the juvenile be placed on a term of juvenile delinquent supervision after official

detention.” One appellate court has held that “the maximum term of supervision that a court may

impose under § 5037(d)(6) is determined by the requirements in § 5037(d)(2), using the

juvenile’s age at the time of the revocation hearing.”153

Juvenile Records and Conditions of Custody

One of the hallmarks of the Federal Juvenile Delinquency Act is its effort to shield juveniles from

some of the harsh consequences of exposure to the criminal justice system. Before and after being

taken into custody, and before and after being found delinquent, it refuses to allow juveniles to be

interspersed with adults who are awaiting trial for, or have been convicted of, criminal

offenses.154 In the same spirit, ordinarily federal juvenile records are sealed for all purposes other

than judicial inquiries, law enforcement needs, juvenile treatment requirements, employment in a

position raising national security concerns, or disposition questions from victims.155 This does not

render otherwise admissible evidence of juvenile proceedings inadmissible in criminal

proceedings.156 Moreover, in response to media requests the court will balance the competing

150 Id. § 5037(c)(2), (d)(5).

151 Id. § 5037(c)(2)(A)(i), (ii); see e.g., United States v. Juvenile Male, 900 F.3d 1036, 1044 & n.4 (9th Cir. 2018).

152 18 U.S.C. § 5037(c)(2)(B)(i), (ii), (iii).

153 United States v. E.T.H., 833 F.3d 931, 939-40 (8th Cir. 2016) (Thus, “the maximum total period of detention and

supervision that may be imposed upon revocation of a previously imposed term of supervision for a juvenile who is

under age 21 at the time of revocation is (i) 3 years, (ii) the top of the Guidelines range that would have applied to a

similarly situated adult defendant unless the court finds an aggravating factor to warrant an upward departure, or (iii)

the maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult,

whichever is least, see 18 U.S.C. § 5037(c)(2)(B), ’less the term of official detention ordered.’ Id. § 5037(d)(2)(B).”)

(emphasis of the court).

154 18 U.S.C. § 5035.

155 Id. § 5038(a).

156 United States v. Jefferson, 215 F.3d 820, 824–25 (8th Cir. 2000) (upholding admission in proceedings against adult

defendants when the juvenile raised no objections and the adult defendant had no standing to object); United States v.

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interests, which weigh heavily in favor of confidentiality;157 and, in light of the Crime Victims’

Rights Act,158 the court may permit the government to notify the victim of a juvenile threat of the

status of proceedings against the juvenile, without identifying him.159

The Sex Offender Registration and Notification Act160 dictates when a federal juvenile delinquent

must register as a sex offender,161 notwithstanding apparent conflicts with the confidentiality

provisions that govern juvenile records.162

Juveniles Tried as Adults

Juveniles transferred for trial as adults in federal court are essentially treated as adults, with few

distinctions afforded or required because of their age. At one time, even the Sentencing

Guidelines instructed sentencing judges that an offender’s youth was not ordinarily a permissible

ground for reduction of the otherwise applicable Sentencing Guideline range.163 The Sentencing

Commission has since amended the guideline to permit consideration of the defendant’s age in

atypical cases.164

The Constitution’s Cruel and Unusual Punishments Clause limits the sentence that a court may

impose upon a juvenile tried as an adult. The “death penalty cannot be imposed upon juvenile

offenders.”165 Nor can life imprisonment without the possibility of parole be imposed upon a

juvenile offender for a non-homicide offense.166 Nor may a sentence of mandatory life without the

possibility of parole be imposed for a homicide committed by a juvenile under the age of 18.167

Nevertheless, a sentencing court need not find that a juvenile is permanently incorrigible before

imposing a discretionary sentence of life without parole.168

Under Seal, 853 F.3d 706, 728 (4th Cir. 2017) (upholding disclosure of partial transcript of juvenile proceedings in the

order to satisfy the government’s Brady obligations to disclose exculpatory evidence to defendant’s counsel in related

adult criminal proceedings).

157 United States v. Three Juveniles, 61 F.3d 86, 92–94 (1st Cir. 1995) (upholding lower court authority to close

juvenile proceedings); United States v. A.D., 28 F.3d 1353, 1361–62 (3d Cir. 1994) (holding balance favored opening

juvenile proceedings); In re Wash. Post Motion, 247 F. Supp. 2d 761, 762–64 (D. Md. 2003) (unsealing some records

but refusing to open others where the juvenile had been charged as an adult in another jurisdiction).

158 18 U.S.C. § 3771.

159 United States v. C.S., 968 F.3d 237, 246–47 (3d Cir. 2020).

160 34 U.S.C. §§ 20901–20932.

161 Id. § 20911(8) (when the juvenile “is 14 years of age or older at the time of the offense and the offense adjudicated

was comparable to or more severe than aggravated sexual abuse (as described in section 2241 of title 18), or was an

attempt or conspiracy to commit such an offense”).

162 United States v. Juvenile Male, 670 F.3d 999, 1002 (9th Cir. 2012); United States v. Under Seal, 709 F.3d 257, 259

(4th Cir. 2013).

163 U.S. Sent’g Guidelines Manual § 5H1.1 (U.S. Sent’g Comm’n eff. until Nov. 1, 2010) (“Age (including youth) is

not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. . .”); United

States v. Wong, 40 F.3d 1347, 1381 (2d Cir. 1994); United States v. Talk, 13 F.3d 369, 371 (10th Cir. 1993).

164 U.S. Sent’g Guidelines Manual § 5H1.1 (“Age (including youth) may be relevant in determining whether a

departure is warranted, if considerations based on age, individually or in combination with other offender

characteristics, are present to an unusual degree and distinguish the case from the typical cases covered by the

guidelines. . . .”).

165 Roper v. Simmons, 543 U.S. 551, 575 (2005).

166 Graham v. Florida, 560 U.S. 48, 82 (2010).

167 Miller v. Alabama, 567 U.S. 460, 465 (2012).

168 Jones v. Mississippi, 141 S. Ct. 1307, 1311 (2021).

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A federal court may sentence a juvenile to a term of imprisonment which, given his life

expectancy and abolition of federal parole, “amount[s] to a de facto LWOP sentence.”169

Addendum

18 U.S.C. § 5032 (Text)

A juvenile alleged to have committed an act of juvenile delinquency, other than a violation

of law committed within the special maritime and territorial jurisdiction of the United

States for which the maximum authorized term of imprisonment does not exceed six

months, shall not be proceeded against in any court of the United States unless the Attorney

General, after investigation, certifies to the appropriate district court of the United States

that (1) the juvenile court or other appropriate court of a State does not have jurisdiction or

refuses to assume jurisdiction over said juvenile with respect to such alleged act of juvenile

delinquency, (2) the State does not have available programs and services adequate for the

needs of juveniles, or (3) the offense charged is a crime of violence that is a felony or an

offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), or

section 1002(a), 1003, 1005, 1009, or 1010(b)(1), (2), or (3) of the Controlled Substances

Import and Export Act (21 U.S.C. 952(a), 953, 955, 959, 960(b)(1), (2), (3)), section 922(x)

or section 924(b), (g), or (h) of this title, and that there is a substantial Federal interest in

the case or the offense to warrant the exercise of Federal jurisdiction.

If the Attorney General does not so certify, such juvenile shall be surrendered to the

appropriate legal authorities of such State. For purposes of this section, the term "State"

includes a State of the United States, the District of Columbia, and any commonwealth,

territory, or possession of the United States.

If an alleged juvenile delinquent is not surrendered to the authorities of a State pursuant to

this section, any proceedings against him shall be in an appropriate district court of the

United States. For such purposes, the court may be convened at any time and place within

the district, in chambers or otherwise. The Attorney General shall proceed by information

or as authorized under section 3401(g) of this title, and no criminal prosecution shall be

instituted for the alleged act of juvenile delinquency except as provided below.

A juvenile who is alleged to have committed an act of juvenile delinquency and who is not

surrendered to State authorities shall be proceeded against under this chapter unless he has

requested in writing upon advice of counsel to be proceeded against as an adult, except

that, with respect to a juvenile fifteen years and older alleged to have committed an act

after his fifteenth birthday which if committed by an adult would be a felony that is a crime

of violence or an offense described in section 401 of the Controlled Substances Act (21

U.S.C. 841), or section 1002(a), 1005, or 1009 of the Controlled Substances Import and

Export Act (21 U.S.C. 952(a), 955, 959), or section 922(x) of this title, or in section 924(b),

(g), or (h) of this title, criminal prosecution on the basis of the alleged act may be begun

by motion to transfer of the Attorney General in the appropriate district court of the United

States, if such court finds, after hearing, such transfer would be in the interest of justice. In

the application of the preceding sentence, if the crime of violence is an offense under

section 113(a), 113(b), 113(c), 1111, 1113, or, if the juvenile possessed a firearm during

the offense, section 2111, 2113, 2241(a), or 2241(c), "thirteen" shall be substituted for

"fifteen" and "thirteenth" shall be substituted for "fifteenth". Notwithstanding sections

1152 and 1153, no person subject to the criminal jurisdiction of an Indian tribal government

shall be subject to the preceding sentence for any offense the Federal jurisdiction for which

169 United States v. Grant, 9 F.4th 186, 190 (3d Cir. 2021); see also United States v. Portillo, 981 F.3d 181, 182 (2d Cir.

2020). Both Grant and Portillo were convicted on racketeering charges (18 U.S.C. § 1962) that involved multiple

murders.

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is predicated solely on Indian country (as defined in section 1151), and which has occurred

within the boundaries of such Indian country, unless the governing body of the tribe has

elected that the preceding sentence have effect over land and persons subject to its criminal

jurisdiction. However, a juvenile who is alleged to have committed an act after his sixteenth

birthday which if committed by an adult would be a felony offense that has as an element

thereof the use, attempted use, or threatened use of physical force against the 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 committing the offense, or would be an offense

described in section 32, 81, 844(d), (e), (f), (h), (i) or 2275 of this title, subsection (b)(1)(A),

(B), or (C), (d), or (e) of section 401 of the Controlled Substances Act, or section 1002(a),

1003, 1009, or 1010(b)(1), (2), or (3) of the Controlled Substances Import and Export Act

(21 U.S.C. 952(a), 953, 959, 960(b)(1), (2), (3)), and who has previously been found guilty

of an act which if committed by an adult would have been one of the offenses set forth in

this paragraph or an offense in violation of a State felony statute that would have been such

an offense if a circumstance giving rise to Federal jurisdiction had existed, shall be

transferred to the appropriate district court of the United States for criminal prosecution.

Evidence of the following factors shall be considered, and findings with regard to each

factor shall be made in the record, in assessing whether a transfer would be in the interest

of justice: the age and social background of the juvenile; the nature of the alleged offense;

the extent and nature of the juvenile's prior delinquency record; the juvenile's present

intellectual development and psychological maturity; the nature of past treatment efforts

and the juvenile's response to such efforts; the availability of programs designed to treat

the juvenile's behavioral problems. In considering the nature of the offense, as required by

this paragraph, the court shall consider the extent to which the juvenile played a leadership

role in an organization, or otherwise influenced other persons to take part in criminal

activities, involving the use or distribution of controlled substances or firearms. Such a

factor, if found to exist, shall weigh in favor of a transfer to adult status, but the absence of

this factor shall not preclude such a transfer.

Reasonable notice of the transfer hearing shall be given to the juvenile, his parents,

guardian, or custodian and to his counsel. The juvenile shall be assisted by counsel during

the transfer hearing, and at every other critical stage of the proceedings.

Once a juvenile has entered a plea of guilty or the proceeding has reached the stage that

evidence has begun to be taken with respect to a crime or an alleged act of juvenile

delinquency subsequent criminal prosecution or juvenile proceedings based upon such

alleged act of delinquency shall be barred.

Statements made by a juvenile prior to or during a transfer hearing under this section shall

not be admissible at subsequent criminal prosecutions.

Whenever a juvenile transferred to district court under this section is not convicted of the

crime upon which the transfer was based or another crime which would have warranted

transfer had the juvenile been initially charged with that crime, further proceedings

concerning the juvenile shall be conducted pursuant to the provisions of this chapter.

A juvenile shall not be transferred to adult prosecution nor shall a hearing be held under

section 5037 (disposition after a finding of juvenile delinquency) until any prior juvenile

court records of such juvenile have been received by the court, or the clerk of the juvenile

court has certified in writing that the juvenile has no prior record, or that the juvenile's

record is unavailable and why it is unavailable.

Whenever a juvenile is adjudged delinquent pursuant to the provisions of this chapter, the

specific acts which the juvenile has been found to have committed shall be described as

part of the official record of the proceedings and part of the juvenile's official record.

Congressional Research Service

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Juvenile Delinquents and Federal Criminal Law

Author Information

Charles Doyle

Senior Specialist in American Public Law

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Congressional Research Service

RL30822 · VERSION 10 · UPDATED

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