Juvenile Justice and Prosecutorial Discretion

When assessing whether to pursue federal prosecution, prosecutors should be mindful of the unique status of juveniles in our criminal justice system. The U.S. Supreme Court has recognized that there are differences between adult and juvenile offenders such that “juvenile offenders cannot with reliability be classified among the worst offenders.”

See Roper v. Simmons

, 543 U.S. 551 (2005);

Graham v. Florida

, 560 U.S. 48 (2010). In

Roper

, the Court noted “three general differences between juveniles under 18 and adults,” including that juveniles have a “lack of maturity and . . . underdeveloped sense of responsibility,” that “juveniles are more vulnerable or susceptible to negative influences and outside pressures,” and that “the character of a juvenile is not as well formed as that of an adult.” 543 U.S. at 569-570. In

Graham

, the Supreme Court pointed out that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence.” 560 U.S. at 68. And in

Miller v. Alabama

, the Court highlighted that the “science and social science supporting

Roper

’s and

Graham

’s conclusions have become even stronger.” 567 U.S. 460, 472, n.5 (2012).

As with any matter, a prosecutor’s decision to commence or decline prosecution of a juvenile should be guided by the

Principles of Federal Prosecution

.

See

JM §§

9-27.000

et seq

.;

see also

18 U.S.C. § 5032 (describing statutory limitations on federal prosecution of juveniles)

social science supporting

Roper

’s and

Graham

’s conclusions have become even stronger.” 567 U.S. 460, 472, n.5 (2012).

As with any matter, a prosecutor’s decision to commence or decline prosecution of a juvenile should be guided by the

Principles of Federal Prosecution

.

See

JM §§

9-27.000

et seq

.;

see also

18 U.S.C. § 5032 (describing statutory limitations on federal prosecution of juveniles). In deciding whether to prosecute a matter federally, prosecutors should weigh all relevant considerations, including federal law enforcement priorities, the nature and seriousness of the offense, the deterrent effect of prosecution, the individual’s culpability in connection with the offense, the individual’s history with respect to criminal activity, the individual’s willingness to cooperate in the investigation or prosecution of others, the individual’s personal circumstances, the interests of any victims, and the probable disposition or other consequences.

See

JM §

9-27.230

. Prosecutors have discretion to forgo the prosecution of a juvenile altogether in the interest of justice. Similarly, selective prosecution is not a denial of equal protection unless the selection is based on an unjustifiable standard such as race or religion.

See

United States v. Goodwin

, 457 U.S. 368, 380 n. 11 (1982);

Bordenkircher v. Hayes

, 434 U.S. 357, 364 (1978);

Oyler v. Boles

, 368 U.S. 448, 456 (1962).

In determining whether to pursue federal prosecution of a juvenile, the prosecutor should consider the availability of non-criminal sanctions related to a juvenile’s delinquent conduct.

See

JM §

9-27.250

. For example, prosecutors may consider a non-prosecution agreement, or a civil judicial or administrative forfeiture action against property that a juvenile acquired through illegal activity. Where appropriate, prosecutors may also coordinate with the Department’s civil attorneys to seek an order enjoining a juvenile from certain illegal activity.

juvenile’s delinquent conduct.

See

JM §

9-27.250

. For example, prosecutors may consider a non-prosecution agreement, or a civil judicial or administrative forfeiture action against property that a juvenile acquired through illegal activity. Where appropriate, prosecutors may also coordinate with the Department’s civil attorneys to seek an order enjoining a juvenile from certain illegal activity.

In addition, when evaluating cases involving a juvenile, prosecutors should consider whether any adults also participated in the illegal conduct and should face criminal charges. If an adult used or attempted to use someone under 18 to commit an offense, or to assist in avoiding detection of or apprehension for the offense, prosecutors should consider seeking federal prosecution of the adult and, if there is a conviction, consider seeking a sentencing enhancement under U.S.S.G. § 3B1.4 (Using a Minor to Commit a Crime). Where the offense was a crime of violence, prosecutors should also consider seeking enhanced penalties pursuant to 18 U.S.C. § 25 (Use of Minors in Crimes of Violence).

In rare cases—typically those implicating national security issues—a juvenile prosecution might require the use or review of classified material. In such situations, the prosecution team should seek guidance from the National Security Division as to whether prosecutors can better protect the classified material in a federal, as opposed to state, juvenile proceeding. (In any event, when filing terrorism or other national security-related charges against a juvenile, prosecutors must consult with and seek approval from the National Security Division. JM §

9-90.020

.)

[updated June 2024]