9-8.001
Supervision of Juvenile Prosecutions
Juvenile prosecutions are supervised by the Terrorism and Violent Crime
Section of the Criminal Division, and its staff attorneys are available for
consultation on issues such as whether to file a motion with the court to
transfer the juvenile to adult prosecution. See
USAM 9-8.130. See also
USAM 9-8.230
[updated January 1998]
9-8.010
Armed Forces Enlistment as an
Alternative to Federal Prosecution
Plea or sentence bargaining agreements should not be contingent on, or
contain provisions designed to facilitate, enlistment in the Armed Services.
This sort of agreement is contrary to Regulations of the Armed Services,
because persons enlisting under such conditions are not properly motivated
to become an effective member of the Armed Forces.
There may be exceptional cases in which imminent military service,
together with other factors, may be considered in deciding to decline
prosecution if the offense is insubstantial, the offender is generally of
good character, and has no criminal record.
9-8.110
Certification
With one limited exception (the certification requirement does not apply
to violations 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, see S. Rep. No. 98-225, at
388), a juvenile cannot be proceeded against in any court of the United
States unless the Attorney General, after investigation, certifies to the
appropriate United States District Court that (1) the juvenile court or
other appropriate state court does not have jurisdiction or refuses to
assume jurisdiction over the juvenile with respect to the alleged act of
juvenile delinquency; or (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 or an offense described in 18 U.S.C. §§ 922(x),
924(b),(g), or (h), or 21 U.S.C. §§ 841, 952(a), 953, 955, 959, or
960(b)(1), (2), or (3) and there is a substantial federal interest that
justifies the exercise of federal jurisdiction. See 18 U.S.C. §
5032.
The authority to proceed with this certification was delegated to the United
States Attorneys by then Assistant Attorney General Jo Ann Harris in a
Memorandum dated July 20, 1995. Consultation with state officials is
important in determining the appropriate method of proceeding. In this
regard, it is important to note that a number of states consider persons to
be adults for purposes of criminal prosecution at an age younger than
eighteen years of age.
Sample certification forms are in the Criminal
Resource Manual at 42 and 150.
[updated March 2004]
[cited in
Criminal Resource Manual 58]
9-8.120
Filing of the Complaint
The Department does not interpret 18 U.S.C. § 5032 as
requiring certification prior to the filing of a complaint and issuance of
an arrest warrant. That part of 18 U.S.C. § 5032 which states
"[i]f the Attorney General does not so certify, such juvenile shall be
surrendered to the appropriate legal authorities of such state" necessarily
implies that an arrest procedure has been completed. Upon a juvenile's
arrest, the United States Attorney should expeditiously determine whether
there is a substantial basis to file a certification invoking federal
jurisdiction. Nor should certification be required in cases where a juvenile
is brought before a judge for a Federal Rule of Criminal Procedure 40
removal hearing. The United States Attorney in the district where the crime
was committed or the complaint was filed is the only party who can make the
proper determination of whether one of the factors necessary for
certification exists or whether the case should be turned over to state
authorities.
[cited in
Criminal Resource Manual 120]
9-8.130
Motion to Transfer
Section 5032 of Title 18 provides several avenues for adult prosecution
of a juvenile. The first arises when the juvenile has requested in writing,
upon advice of counsel, to be proceeded against as an adult. A second
involves the filing of a "motion of transfer" in cases involving juveniles
thirteen years or older who have committed certain classes of offenses
(Native American juveniles ages 13 and 14 may not be transferred unless
their tribe has elected such treatment). In the latter case, after filing of
the motion to transfer (Motion to Proceed Against the Juvenile as an Adult)
in the United States District Court, the court must conduct a hearing to
determine whether such prosecution would be in the interest of justice. In
making this determination, the court must separately consider each of the
criteria set out in the fifth paragraph of 18 U.S.C. § 5032. In
doing so it must receive evidence on each of the factors set out, and make
oral or written findings in the record with regard to each of those
factors.
Repeat Offenders: When a juvenile, after his or her sixteenth
birthday, is charged with certain felonies involving violence or the
potential for violence, certain weapons offenses, or particular drug crimes,
or a particularly dangerous crime, and there has been a previous Federal or
State adjudication for those types of offenses, a mandatory transfer of the
case may be requested under the statute. See 18 U.S.C. § 5032.
The decision to proceed against a juvenile as an adult in district
court was delegated to the United States Attorneys by then Assistant
Attorney General Jo Ann Harris in a Memorandum dated July 20, 1995. However,
to maintain uniformity, United States Attorneys should notify the Domestic
Security Section of the Criminal Division (DSS) prior to authorizing that a
motion to transfer be filed. Be aware that Native American juveniles who
are 13 and 14 years of age may not be transferred unless their tribe has
elected such treatment.
If a juvenile is transferred for prosecution and is convicted of a
lesser charge which could not have supported the transfer, the disposition
of the juvenile is to proceed in the same manner as if he/she had been
adjudicated delinquent rather than criminally convicted.
[updated April 2004]
[cited in
USAM 9-8.001]
9-8.140
Arrest of a Juvenile
For information concerning the arrest and questioning of
a juvenile, see the Criminal Resource
Manual at 43 and 44.
9-8.150
Detention of Juveniles
For a discussion of the laws governing the detention of juveniles, see
the Criminal Resource Manual at 45.
9-8.190
Prosecutorial Discretion
Prosecutors have discretion to forego prosecutions 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). United States
Attorneys should continue to exercise their discretion in a manner
consistent with the best interests of society and the criminal justice
system.
The use of any pre-trial diversion program, including the "Brooklyn
Plan," for juveniles is inappropriate unless the certification requirements
of the law have been met and the pre-trial diversion guidelines set out by
the Department have been complied with. See
USAM 9-22.000 et seq. (Pretrial Diversion).
9-8.200
Jury Trials
The law does not require jury trial for juveniles, and the Department
opposes them. For a summary of decisions, see United States v.
Cuomo, 525 F.2d 1285 (5th Cir. 1976).
9-8.210
Notification
United States Attorneys should insure that the law enforcement officers
in their judicial district are made aware of the notification requirements
of 18 U.S.C. § 5033. These include advice to an arrested juvenile
of constitutional rights, and notice of custody to the United States
Attorney and the juvenile's parents or custodian. The arresting officer must
also notify the parents or custodian of the rights of the juvenile, and of
the nature of the alleged offense.
9-8.220
Public Information Concerning Juveniles
Subsections (a) through (c) of 18 U.S.C. § 5038 guard against
improper disclosure of juvenile records. Subsection (d) provides for the
routine fingerprinting and photographing of juveniles prosecuted as adults
and juveniles adjudicated delinquent with respect to offenses that are
felonies involving violence or serious drug crimes. Fingerprints and
photographs of juveniles not prosecuted as adults which were obtained for
specific investigative purposes may be made available only in accordance
with the provisions of 18 U.S.C. § 5038(a).
Subsection (e) prohibits the publication of the name or picture of any
juvenile in connection with a juvenile delinquency proceeding.
Additionally, there are laws that restrict the information that
government employees may release about any child victim or witness.
See the Criminal Resource Manual at 46.
9-8.230
Additional Resource Materials
Additional materials on handling juvenile cases can be found in the
Criminal Resource Manual: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |