Federal Juvenile Prosecutions

The federal statutes which govern proceedings against juveniles are set forth at 18 U.S.C. §§ 5031-5039. while exceedingly rare – Federal Prosecutions of Juveniles do occurr.. This page is intended to assist you in understanding the process.

The statutes lay out:

  1. who is considered a juvenile under federal law,
  2. when a juvenile may be treated as a juvenile delinquent in federal court,
  3. when a juvenile may be prosecuted as an adult in federal court, and the procedures to be followed in each case.

What follows is a guide to assist you, step by step, of charging and prosecuting juvenile and how proceedings proceed in the handling of such cases.

  1. Is the Subject is a Juvenile
  2. Statements Taken From Juveniles
  3. Parental Notification
  4. Routine Booking Photos and Fingerprints
  5. Publicity
  6. The Appropriate Forum
  7. Prior Criminal History
  8. Juvenile Custody Issues
  9. Motions to Transfer a Juvenile to Adult Status
  10. Advancing The Federal Juvenile Case
  11. Prosecuting a Juvenile Who Has Been Ordered Transferred to Adult Status
  12. Proceeding Against a Juvenile as a Delinquent
Is the Subject a Juvenile

A recurrent issue in juvenile proceedings is whether the subject of an investigation was under the age of 18 at the time of the offense and whether he or she now is under 21 for the purpose of juvenile delinquency proceedings. See 18 U.S.C. § 5031.

If there is a question concerning the subject’s age and the subject has no undisputed proof of birth date to offer the court, the United States Prosecutor will most likely take the position that the burden of proof is on the person claiming the benefit of the federal juvenile statutory provisions, since that person is in the best position to offer evidence of his or her age.

On the other hand, if the exact date of the offense is the critical issue, that burden will probably be placed on the prosecutor.

Statements Taken From Juveniles

A juvenile’s waiver of Miranda rights is suspect if given without the advice of a parent or adult guardian. A juvenile has both a right to counsel, and a privilege against self-incrimination in juvenile delinquency proceedings.

A juvenile may waive his or her Fifth Amendment rights and consent to interrogation..

The determination whether a juvenile’s waiver is voluntary and knowing is one to be resolved on the totality of the circumstances surrounding the interrogation. That means that the Judge must determine not only that the statements were not coerced or suggested, but also that they were not the products of ignorance of rights or of adolescent fantasy, fright, or despair.

Among the factors which are considered are the juvenile’s age, experience, education, background, and intelligence, whether he has the capacity to understand the warning given to him, the nature of his Fifth Amendment rights, and the consequences of waiving them.

Since confessions by juveniles are subject to closer scrutiny than those of adults, Miranda warnings are probably an essential threshold requirement for voluntariness. The presence of a parent or guardian is not required for a voluntary waiver, although it is a factor to be considered. At least one court has found a waiver prior to notification to the parents or guardian of the juvenile to be invalid.

Parental Notification

From the moment that a juvenile is detained, he or she is entitled to juvenile custody and notification of parents. By statute, the officer arresting a juvenile is required to advise a juvenile of his rights, and must immediately notify the Attorney General (notice to the United States Attorney is sufficient) and the juvenile’s parents, guardian, or custodian of such custody. 18 U.S.C. § 5033.

The arresting officer also is required to notify the parent, guardian, or custodian of the rights of the juvenile and of the nature of the alleged offense. Id. The juvenile must be taken before a magistrate as soon as possible and within a reasonable period of time. Id. The duties of the magistrate at that time are set forth in 18 U.S.C. § 5034. A federal magistrate-judge cannot preside at substantive proceedings if the underlying crime is a Class A misdemeanor or felony, and a magistrate-judge has no power to impose imprisonment. 18 U.S.C. § 3401(g).

In addition to voluntariness, the courts also have considered the statutory requirement of prompt presentment in connection with the admissibility of confessions. Title 18 U.S.C. § 5033 provides, in pertinent part:

The juvenile shall be taken before a magistrate forthwith. In no event shall the juvenile be detained for longer than a reasonable period of time before being brought before a magistrate.

Apparently by analogy to the McNabb/Mallory rule for adults, some courts have held inadmissible confessions obtained during a delay in presentment in violation of this provision. In deciding when this provision has been violated, some courts have focused on the “forthwith” language and others on the “reasonable period of time” language.

One district court has read the statutory language as a literal requirement that, when there is a magistrate available, the juvenile be taken there immediately. On this basis, the court held unreasonable a delay between a 10:15 a.m. arrest and arrival at the magistrate at 5:15 p.m. for a 7:00 p.m. presentment, during part of which the defendant was interviewed at the FBI office. Id. at 1444.

On the other hand, the Second Circuit held a delay between a 10:15 a.m. arrest and a 3:00 p.m. presentment to be reasonable under the circumstances, where the period included an interview with the Assistant United States Attorney, in part because there was a valid investigatory purpose to the interview. The Ninth Circuit has held that a valid waiver of Miranda rights also constitutes a waiver of prompt presentment rights. Because of the varying approaches to this issue, it is essential to consult the law of your circuit.

Statements by a juvenile at and in connection with a transfer hearing may not be used against him or her.

Routine Booking Photos and Fingerprints

Routine booking photos and fingerprints of juveniles are not permitted, except when there is a specific investigatory need. The federal juvenile statutes provide for fingerprinting and photographing of juveniles only after a finding of guilt for certain types of drug and violent offenses. See 18 U.S.C. § 5038(d).

As a result, routine booking photographs and fingerprints should not be taken upon arrest of a person known to be a juvenile unless they are required for investigative purposes (e.g., where the identity, age, or criminal record of the arrestee is not settled).


Press releases and other publicity identifying the juvenile directly or indirectly are not permitted under 18 U.S.C. § 5038, unless and until the juvenile is transferred by the court to adult status.

A juvenile may be arrested on a warrant issued either on a complaint or a juvenile information. Where arrest is not needed, the court may be asked to issue a summons on the complaint or information. In either case, it is advisable to have the complaint and/or information placed under seal by the clerk’s office to avoid public disclosure of the juvenile’s identity.

If a person is belatedly determined to be a juvenile (after publicity or indictment) and if a hearing on a motion to transfer|B251 the juvenile to adult status is not imminent, consider whether there are steps you can take to minimize further publicity.

The Appropriate Court for Prosecution

When the subject is a juvenile, The Federal Prosecutor has to determine whether state or federal, adult or juvenile prosecution will best accomplish his/her goals. Several factors are considered including the following:

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

Whether the subject will more easily be transferred to adult status in a state prosecution because of limitations on the statutory bases for federal juvenile proceedings.

Federal jurisdiction to initiate a juvenile delinquency proceeding may be established:

  1. where the appropriate state court does not have jurisdiction or refuses to assume jurisdiction;
  2. where the state does not have available programs and services adequate for the needs of juveniles; or
  3. where the offense charged is a felony that is a crime of violence or one of the drug or gun offenses enumerated in the first paragraph of 18 U.S.C. § 5032 and there is a substantial federal interest in the case. Juvenile delinquency proceedings can be initiated for any federal crime if the state declines to prosecute the matter.

A motion to transfer| a juvenile to federal court as an adult may be based on the commission of a felony crime of violence or drug or firearm offense enumerated in the fourth paragraph of 18 U.S.C. § 5032. Age plays a factor in the charging decision.

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

Wether it is more likely that the state will impose a harsher penalty. In a federal juvenile delinquency proceeding, official detention may not extend beyond the juvenile’s twenty-first birthday if the juvenile was under eighteen at the time of disposition, or beyond five years for a juvenile who was between the ages of eighteen and twenty-one at the time of disposition. In addition, the period of detention may not exceed the maximum period of imprisonment authorized had the juvenile been an adult. 18 U.S.C. § 5037.

The Juvenile’s Prior Criminal History

If a juvenile is to be prosecuted federal court, ayou should initiate a prompt search for certified copies of any prior criminal convictions or delinquency adjudications. These must be obtained and provided to the court. Prior juvenile records of the defendant must be provided to the court before it can transfer the case to adult status or proceed to sentencing in a juvenile adjudication. If there are no such records, the clerk of the appropriate juvenile court must certify in writing that the juvenile has no prior record or that the record is unavailable and why. 18 U.S.C. § 5032 (tenth paragraph).

The existence of a prior juvenile record is a critical factor in the court’s determination whether to transfer a juvenile to adult status under the criteria set forth in the fifth paragraph of 18 U.S.C. § 5032. It is also evidence that the juvenile’s response to prior juvenile treatment was unavailing.

If the juvenile charged with certain specified offenses has been previously convicted or adjudicated guilty of certain specified offenses, the granting of the government’s motion to transfer the juvenile to adult status is mandatory.

Issues Related to Juvenile Custody

At an initial appearance before the magistrate, the juvenile will be released to his parents, guardians, custodians, or other responsible party upon the party’s promise to ensure the juvenile’s presence at court proceedings. Pretrial detention may be ordered if the court determines that detention is required to secure the juvenile’s timely appearance in court or to ensure his safety or the safety of others. 18 U.S.C. § 5034.

A juvenile who is detained must be housed with similarly situated juvenile offenders until he or she is ordered transferred to adult status and reaches age 18 or, if prosecuted as a juvenile delinquent, until he or she reaches age twenty-one. At this time, there are virtually no federally owned and operated pretrial or post-conviction juvenile bed spaces.

If a juvenile will be arrested and the Federal Prosecutor will seek pretrial detention, he/she will provide as much notice as possible to the local U.S. Marshal so that he can begin to determine the availability of local contract juvenile bed space.

Lead time is also provided to the Bureau of Prisons if it is anticipated a juvenile adjudication or conviction that is likely to result in a period of detention.

Motions to Transfer a Juvenile to Adult Status

If the Federal Prosecutor has decided to seek adult prosecution of the juvenile, a memorandum in support of a transfer to adult status must be filed with the court.

The juvenile’s actual role in the federal offenses which is transferable is reviewed as well as any prior criminal history. The memorandum in support of the transfer motion will address the factors that the court is required to consider in assessing whether a transfer would be in the interest of justice. These factors, set forth in 18 U.S.C. § 5032, include:

  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 such efforts; the availability of programs designed to treat the juvenile’s behavioral problems.

An additional factor was added “In considering the nature of the offense, … 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.” If the juvenile is found to have played such a role, that fact shall weigh in favor of a transfer to adult status, but the absence of this factor shall not preclude such a transfer.

Proceeding Against a Juvenile as a Delinquent

If you proceed with a juvenile adjudication, you should anticipate a speedy closed trial that follows nearly all the same rules as a criminal prosecution. The proceeding is conducted before a district court judge, since a magistrate cannot impose jail time on a juvenile. 18 U.S.C. § 3401(g).

The juvenile delinquency proceeding itself proceeds essentially like a bench ( or judge only) trial. Where detention may follow the proceeding, juveniles have been held to have constitutional rights under the due process clause to adequate notice, to the assistance of counsel, to the privilege against self-incrimination, and to confront and cross-examine adverse witnesses.

The due process clause also requires proof beyond a reasonable doubt. Juveniles do not have a constitutional right to a jury trial in juvenile court, and the federal statutes do not provide for one.

The Federal Rules of Evidence apply to juvenile delinquency proceedings. But the Rules of Criminal Procedure do not apply in any circumstance where their application is inconsistent with the juvenile statutes. See Fed. R. Crim. P. 54(b)(5).

The entire proceeding is subject to the limitations set forth in 18 U.S.C. § 5038 on disclosure of the identity of the juvenile defendant and information about the juvenile proceedings. Methods of complying with these limitations include filing documents in the case under seal, using the juvenile’s initials or “John Doe” to describe the juvenile in any pleadings, and conducting proceedings in a closed courtroom or in chambers. See generally, United States v. A.D., 28 F.3d 1353 (3d Cir. 1994).

Upon an adjudication of delinquency, the judge has discretion to impose any of the conditions listed in 18 U.S.C. § 5037. These include restitution, probation (and conditions of probation), and official detention, but not fines. Prosecutors should be aware that there is no supervised release for juvenile delinquents. Juveniles sentenced to official detention are committed to the custody of the Attorney General.

The Federal Bureau of Prisons designates a place of confinement. Juveniles adjudicated delinquent who are under 21 may not be placed in an institution in which they have “regular contact” with adults convicted of crimes or awaiting trial on criminal charges. 18 U.S.C. § 5039. There are at present no long-term federal facilities for juveniles. The Bureau of Prisons ordinarily places juveniles in state juvenile or private facilities under contract. Where possible, they are to be placed in foster homes or community-based facilities located in or near their home communities. 18 U.S.C. § 5039.

Constitutional protections afforded juveniles

The United States Supreme Court has held that in juvenile commitment proceedings, juvenile courts must afford to juveniles basic constitutional protections, such as advance notice of the charges, the right to counsel, the right to confront and cross-examine adverse witnesses, and the right to remain silent.

The Supreme Court has extended the search and seizure protections of the Fourth Amendment to juveniles. It has also been held that the Fourth Amendment requires that a juvenile arrested without a warrant be provided a probable cause hearing. The exclusionary rule also applies to federal delinquency adjudications.

Juveniles are entitled to Fifth Amendment protection against self-incrimination in juvenile proceedings despite the non-criminal nature of those proceedings. Substance, not form, controls in determining the applicability of the Fifth Amendment to proceedings not labeled criminal at trial. Since a juvenile defendant’s liberty is at stake, the Fifth Amendment applies.

Juveniles are not, however, accorded the full panoply of rights that adult criminal defendants are accorded, such as the right to trial by jury.

Most of the opinions reason that a jury trial is not required because the Act does not treat alleged juvenile delinquents as alleged criminals, and therefore, the Constitution does not mandate it.

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