Under the JDA, there are three ways a juvenile’s case can move from a delinquency proceeding to an adult criminal prosecution: (1) a written waiver of juvenile status, upon advice of the juvenile’s counsel; (2) a discretionary transfer by the court in the interest of justice; or (3) a mandatory transfer by the court for certain repeat offenders.

As described below, the second and third avenues are typically initiated by a prosecutor filing a “motion to transfer.” 18 U.S.C. § 5032 ⁋ 4. Although a transfer may occur at any time prior to a determination of delinquency, such transfers are typically requested at or near the beginning of juvenile proceedings. The United States Attorney’s Office (USAO) should provide timely notification to the Violent Crime and Racketeering Section of the Criminal Division prior to authorizing the filing of such a motion. Depending on the subject matter of the case, the USAO may wish to—and in some cases must—provide notification to other Department offices or litigating components. See also JM § 9-8.001 (noting that JM approval, consultation, and notification requirements apply to juvenile prosecutions).

A motion to transfer will toll the 30-day speedy trial period for the juvenile proceedings. Therefore, once prosecutors have decided to move for transfer, they should file the motion promptly.

A. Discretionary transfer in the interest of justice. In certain circumstances, prosecutors can seek to transfer a juvenile to adult prosecution upon a judge’s finding that doing so is in the “interest of justice.” As a threshold matter, under the JDA, a discretionary transfer is available only for certain types of offenses, which vary depending on the juvenile’s age:

1. • For acts committed after the juvenile’s 13th birthday: Any felony crime of violence in violation of 18 U.S.C. §§ 113(a), 113(b), 113(c), 1111, or 1113; or, if the juvenile possessed a firearm during the offense, any felony crime of violence in violation of 18 U.S.C. § 2111, 2113, 2241(a), or 2241(c); or

2. • For acts committed after the juvenile’s 15th birthday: All felony crimes of violence, or certain other offenses as specified in 18 U.S.C. § 5032 ⁋ 4 (including offenses under 18 U.S.C. § 924(g) and 21 U.S.C. § 841).

(Prosecutors should be aware of an additional requirement if the offense occurred in Indian country: under the JDA, if (a) the juvenile committed the offense before their 15th birthday, (b) the juvenile is subject to the jurisdiction of a Tribal government, (c) federal jurisdiction for the offense is predicated solely on Indian country jurisdiction, as defined in 18 U.S.C. § 1151, and (d) the offense occurred within the boundary of such Indian country, then the juvenile cannot be transferred to adult status unless the juvenile’s Tribe has elected such treatment. See 18 U.S.C. § 5032 ⁋ 4.)

To prevail on a motion for a discretionary transfer, the prosecutor must establish—and the court must find—that such a transfer would be “in the interest of justice” based on the six factors outlined in 18 U.S.C. § 5032 ⁋ 5:

1. • The age and social background of the juvenile;

2. • The nature of the alleged offense, including 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;

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; and

6. • The availability of programs designed to treat the juvenile’s behavioral problems.

Per 18 U.S.C. § 5032 ⁋ 5, the court must make oral or written findings on the record with regard to each of the six statutory factors.

B. Mandatory transfer for certain repeat offenders. The JDA mandates that the court transfer a juvenile to adult status in certain limited circumstances. To effectuate such a transfer, the prosecution should file a motion establishing that the following three statutory conditions are met:

1. 1. The offense occurred after the juvenile’s 16th birthday;

2. 2. The offense is a felony that either:

   1. 1. Has as an element thereof the use, attempted use, or threatened use of physical force against the person of another, or that “by its very nature, involves a substantial risk that physical force against the person of another may be used in committing the offense” [1]; or

   2. 2. Violates 18 U.S.C. §§ 32, 81, 844(d), 844(e), 844(f), 844(h), or 844(i); or 21 U.S.C. §§ 841(b)(1)(A)-(C), 841(d), 841(e), 952(a), 953, 959, or 960(b)(1)-(3); and

3. 3. The juvenile “has previously been found guilty” of any of the offenses supporting discretionary or mandatory transfer, or an equivalent state-law offense.

C. Procedural requirements for transfer hearings. The JDA establishes several procedural requirements regarding transfer hearings and related proceedings, including:

1. • Reasonable notice of the transfer hearing must be given to the juvenile; the juvenile’s parent(s), guardian(s), or custodian(s); and the juvenile’s counsel. The juvenile must be assisted by counsel during the transfer hearing and at every other critical stage of the proceedings.

1. • Statements made by a juvenile prior to or during a transfer hearing are not admissible at subsequent criminal prosecutions.

1. • If a juvenile is transferred for prosecution and is convicted of a lesser charge that could not have supported the transfer, the disposition of the juvenile must proceed in the same manner as if the juvenile had been adjudicated delinquent rather than criminally convicted.

1. • The government and the juvenile are each entitled to an interlocutory appeal on the transfer decision. During an interlocutory appeal, the juvenile is entitled to all the protections of the JDA while the appeal is pending.

[1] Prosecutors should exercise significant caution—and consult with their appellate unit or liaison—when considering whether to seek a mandatory transfer based solely on the theory that the predicate offense “by its very nature, involves a substantial risk that physical force against the person of another may be used in committing the offense,” 18 U.S.C. § 5032 ⁋ 4, given that the U.S. Supreme Court has found similar language unconstitutional in other contexts. See Johnson v. United States, 135 S. Ct. 2551 (2015); Sessions v. Dimaya, 138 S. Ct. 1204 (2018); and United States v. Davis, 139 S. Ct. 2319 (2019).

[updated June 2024]