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Step 5Prepare Memorandum in Support of a
Motion to
Transfer a Juvenile to Adult Status
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If you have decided to seek adult prosecution of the juvenile,
you will
need to file with the district court a memorandum in support of a
transfer to
adult status. If you decide to use federal juvenile delinquency
proceedings, go
directly to the next step.
You should review carefully the juvenile's actual role in
the federal
offenses which are transferable, as well as any prior criminal
history. The
memorandum in support of the transfer motion should 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:
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.
An additional factor was added by the 1994 crime bill: "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.
Organizing the arguments which support a motion to transfer
the juvenile
to adult status serves several purposes. It can serve as the body
of both your
request to the United States Attorney for authorization to file the
transfer
motion, and it can later serve as the first draft of your district
court transfer
motion. It also will give the United States Attorney and other DOJ
attorneys
with whom you may consult familiarity with your position so they
can suggest
other potential arguments for your motion or identify problems not
already
addressed.
Advance preparation of the memorandum also may assist you if
the juvenile
is held in custody and you are operating under short deadlines, or
if you decide
to obtain transfer authorization ahead of time so that you can file
simultaneously all your initial documents with the court (juvenile
complaint or
information, certification, motion to transfer and memorandum in
support thereof,
and draft transfer order) in order to expedite the judicial
transfer decision.
Knowing the likely success of your motion also may assist
you in
negotiating with defense counsel. For instance, it may be
advantageous to forego
(or withdraw) the transfer request in return for cooperation from
the juvenile,
or to suggest that the juvenile voluntarily request that he be
treated as an
adult and provide "substantial assistance" in support of a downward
departure
under U.S.S.G. § 5K1.1. NOTE: A request by a juvenile to be
proceeded
against as an adult must be made in writing with the advice of
counsel. 18
U.S.C. § 5032.
[cited in Criminal Resource Manual 48] | |