54
Step 2Determine the Appropriate Forum for
Prosecution
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When the subject is a juvenile, you will need to determine
whether state
or federal, adult or juvenile prosecution will best accomplish your
goals. For
example, after reviewing your federal juvenile prosecution options,
you should
consider any number of factors, including the following:
- 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|B251 a juvenile to federal court as an
adult may be
based on the commission of a felony crime of violence or drug or
firearm offense
enumerated in the fourth paragraph of 18 U.S.C. § 5032. Age
plays a factor
in the charging decision. Under the Violent Crime Control and Law
Enforcement
Act of 1994 (the 1994 crime bill), juveniles who are 13 years of
age may be tried
as adults for violating 18 U.S.C. §§ 113(a), (b) and (c)
(assault), 1111
(murder), 1113 (attempt to commit murder or manslaughter), or, if
the juvenile
possessed a firearm during the offense, §§ 2111 (robbery),
2113 (bank
robbery), and 2241(a) and (c) (aggravated sexual abuse), unless the
crimes
occurred in Indian country where the tribe has not opted to allow
the prosecution
of thirteen year old juveniles as adults. Fifteen year old
juveniles can be
prosecuted as adults for violating any crime of violence (i.e.,
involving
physical force against a person or property, see 18
U.S.C. § 16) and for violating 18 U.S.C. §§ 922(x)
(Youth Handgun
Safety Act), 924(b), (g) and (h) (firearms offenses), and 21 U.S.C.
§§
841, 952(a), 955 and 959 (drug offenses). Sixteen year old
juveniles may
additionally be transferred to adult status for violating 21 U.S.C.
§ 953
(exportation of controlled substances).
- Whether it is more likely that the state will impose a
harsher
penalty. In a federal juvenile delinquency proceeding,
official detention
may not extend beyond the juvenile's twenty-first birthday if the
juvenile was
under eighteen at the time of disposition, or beyond five years for
a juvenile
who was between the ages of eighteen and twenty-one at the time of
disposition.
In addition, the period of detention may not exceed the maximum
period of
imprisonment authorized had the juvenile been an adult. 18 U.S.C.
§ 5037.
There are at present no sentencing guidelines which are applicable
to
adjudications of delinquency, but the Supreme Court has held that
unless an
upward departure is justified by the sentencing court, juveniles
may not be
sentenced beyond the guideline range for a similarly situated
adult. United
States v. R.L.C., 503 U.S. 291 (1992).
- The appropriateness of available detention facilities in
the state
or federal system. When a convicted juvenile offender who has
been
transferred to adult status has reached the age of 18, federal
prison officials
can place the person in a regular adult institution. They must
wait until an
adjudicated juvenile delinquent has reached the age of 21 to put
the person in
an adult facility.
- The desirability of keeping codefendants together in the
same
forum.
- The likelihood of delay caused by the filing of an
interlocutory
appeal of a federal transfer decision, and the effect of delay on
the trial of
codefendants.
- The likelihood that the court might deny a transfer to
adult
prosecution where the United States Attorney has certified that
there is a
"substantial federal interest in the case". Under § 5032,
in order to
proceed against a juvenile in federal court, the Attorney General
must certify,
after investigation, that one or more of the enumerated statutory
bases for
federal jurisdiction exists. The Attorney General's authority to
make this
certification has been redelegated to the United States Attorneys.
See
28 C.F.R. 0.57.
- If a motion for transfer to adult status is denied and the
juvenile is
detained, the case must be brought to trial within 30 days. 18
U.S.C. §
5036. Additionally, you should consider the potential effect of a
juvenile
proceeding on a subsequent trial of adult codefendants. If you
were to dismiss
the juvenile proceeding whenever a transfer was denied, you might
risk having
later certifications challenged (as made in bad faith).
- Whether a non-jury federal juvenile adjudication (in
essence, a
closed bench trial) with the potential for up to five years'
detention under 18
U.S.C. § 5037 provides sufficient deterrence and an
appropriate use of
prosecutorial and judicial resources, or whether obtaining an
adult
conviction that may be used for impeachment purposes in subsequent
trials and
that disqualifies a defendant from possessing a firearm under
federal law is more
appropriate. The authority to make this motion was delegated to
the United
States Attorneys by then Assistant Attorney General for the
Criminal Division Jo
Ann Harris on July 20, 1995.
[cited in Criminal Resource Manual 48] | |