When initiating proceedings against a juvenile, either the United States Attorney or the Assistant Attorney General for the Criminal Division must personally certify the existence of at least one of the three statutory bases for seeking to exercise federal jurisdiction:

1. 1. Exclusive federal jurisdiction. 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. 18 U.S.C. § 5032 ⁋ 1.

2. 2. Absence of state programs and services. The state does not have available programs and services “adequate for the needs of juveniles.” Id.

3. 3. Substantial federal interest in charging certain specified offenses. The offense charged is a felony crime of violence or another offense specified in 18 U.S.C. § 5032 ⁋ 1 (e.g., 18 U.S.C. § 924(g) and 21 U.S.C. § 841); and there is a “substantial federal interest” that justifies the exercise of federal jurisdiction. 18 U.S.C. § 5032 ⁋ 1.

The determination of whether a basis for certification exists or if the case should be turned over to state authorities is committed to the United States Attorney in the district with jurisdiction and venue. For that reason, in situations where the juvenile was arrested prior to the commencement of federal proceedings, the United States Attorney or Assistant Attorney General should expeditiously determine whether there is a basis to file such a certification.

Consultation with state officials is especially important in determining the appropriate bases for proceeding. Some states consider persons to be adults for purposes of criminal prosecution at an age younger than 18, often depending on the alleged offense, and the availability of state remedies may affect the United States Attorney’s decision as to whether to proceed with a federal prosecution. For cases proceeding under the third of the three statutory bases listed above, the United States Attorney should determine whether there is a “substantial federal interest” based on the Principles of Federal Prosecution. See, e.g., JM § 9-27.230.

Although the JDA states that the Attorney General must certify the basis for federal jurisdiction, prosecutors should note that this authority has been delegated to the Assistant Attorney General for the Criminal Division and to United States Attorneys. When filing the certification with the court, prosecutors should attach a copy of the most recent delegation memorandum, which was issued by Assistant Attorney General Kenneth A. Polite, Jr. on July 20, 2023.

Prosecutors should also note that the JDA does not require a certification in one limited situation: when the juvenile is alleged to have committed the offense 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 18 U.S.C. § 5032 ⁋ 1; see also S. Rep. No. 98-225, at 388. In addition, certification is not required for a juvenile to be brought before a judge for a removal hearing under Rule 40 of the Federal Rules of Criminal Procedure.

Prosecutors may not seek to place a juvenile in any pretrial diversion program without first ensuring compliance with both the law’s certification requirements and the Department’s pretrial diversion guidelines.

[updated June 2024]