Juvenile Delinquents and Federal Criminal Law: The Federal Juvenile Delinquency Act and Related Matters in Short

May 9, 2023 R47548

Juvenile Delinquents and Federal Criminal
May 9, 2023
Law: The Federal Juvenile Delinquency Act and Charles Doyle
Related Matters in Short
Senior Specialist in
American Public Law
The federal Juvenile Delinquency Act (JDA) gives federal authorities three options when a

juvenile violates federal criminal law. First, they can refer the juvenile to state authorities.
Second, they can initiate federal delinquency proceedings. Third, if a case is retained in the

federal system and involves a serious offense, they can petition the federal court to transfer the
juvenile for trial as an adult. The JDA applies to those charged before the age of 21 with a breach of federal criminal law
occurring before they reached the age of 18.
The JDA generally favors referring juveniles to state authorities, but it permits federal delinquency proceedings where state
courts cannot or will not accept jurisdiction. Given the preference for state juvenile proceedings and the fact that a violation
of federal law will ordinarily support the assertion of state juvenile court jurisdiction, most juveniles who violate federal
criminal law never come in contact with federal authorities. Many of those who do are returned to state officials to be
processed through the state court system.
Most juvenile delinquency cases that remain in the federal system have historically arisen in areas beyond state jurisdiction,
primarily in Indian country. Thus, the majority of federal delinquency proceedings have involved Native Americans. Federal
prosecutors may also elect to initiate federal proceedings if the state courts are unwilling or unable to assume jurisdiction, or
the state has no adequate treatment plans, or the juvenile is charged with a crime of violence or with drug trafficking.
Federal juvenile delinquency proceedings require neither grand jury indictment, public trial, nor trial by jury. The
constitutional rights available to juveniles at delinquency proceedings are otherwise much like those found in adult criminal
trials. Juveniles found delinquent may be released under suspended sentence, placed on probation, ordered to pay restitution
and/or sentenced to detention. The period of detention, if any, may not exceed the term which might be imposed upon an
adult offender for the same misconduct. The period of detention may be followed by a period of juvenile delinquent
supervision, revocation of which in serious cases may result in detention until the individual is 26 years of age.
A U.S. district court may, and in some cases must, transfer a juvenile for criminal trial as an adult. A juvenile may also
request a transfer to trial as an adult. Discretionary transfers come in two varieties. A court may transfer a juvenile who, when
13 years of age or older, is alleged to have committed aggravated assault, murder, attempted murder, armed robbery, or
armed rape. A court may also transfer a juvenile who, when 15 years of age or older, is alleged to have committed drug
trafficking or a violent felony. The court orders or denies the transfer petition after considering the seriousness of the offense,
the age and maturity of the juvenile, the juvenile’s prior delinquency record, the results of past rehabilitative efforts, and the
availability of existing rehabilitative programs. A court must order a transfer when a juvenile has a prior comparable
conviction or juvenile adjudication and is charged with committing a violent offense or a drug trafficking offense at the age
of 16 or older.
This report begins with a brief discussion of the evolution of the treatment of juvenile criminal offenders in the United States.
It then analyzes in detail the various provisions of the JDA.

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Juvenile Delinquents and Federal Criminal Law in Short

uvenile offenders who violate federal criminal law are generally the responsibility of state
juvenile court authorities.1 The Federal Juvenile Delinquency Act (JDA) permits federal
J delinquency proceedings when state courts cannot or will not accept jurisdiction or, in the
case of a limited number of crimes, when there is a substantial federal interest. In the more
serious of these cases, the juvenile offender may be transferred for trial as an adult. The rise in
serious juvenile crime, the contraction of state juvenile court jurisdiction, and the expansion of
federal criminal law have all contributed to the increased prevalence of federal delinquency
proceedings, as described here.
Overview
The continuing basic premise of federal juvenile law is that juvenile matters, even those arising
under federal law, should be handled by state authorities whenever possible. The remote second
preference of federal law is treatment of the juvenile under the federal delinquency provisions.
Because many federal cases arise in areas beyond the reach of state authorities, i.e., primarily
Indian country, the majority of federal delinquency proceedings have historically involved Native
Americans. In a limited, but growing, number of instances involving drugs or violence, federal
law permits the trial of juveniles as adults in federal court.
Under the JDA, a juvenile is an individual under 18 years of age, or an individual between 18 and
21 years of age alleged to have committed a federal offense when under 18 years of age. The Act
does not apply to individuals over 21 years of age or to conduct committed after a person turns
18. Federal authorities, however, may prosecute as an adult any individual whose active
participation in a conspiracy or racketeering enterprise bridges his or her eighteenth birthday.
Once the federal courts have found a juvenile delinquent, however, a court that revokes a
juvenile’s delinquent supervised release may order the juvenile held until age 26.
Federal Juvenile Offenders in State Proceedings

Criminal investigation and prosecution is largely the domain of state and local governments, and
conduct that violates federal criminal law is usually contrary to state law as well. For example,
the federal Controlled Substances Act has a state equivalent in every jurisdiction, and robbery of a
federal insured bank, or murder of a federal employee or law enforcement officer, will almost
always be contrary to the state robbery and murder statutes in the state in which the offenses
occur. Moreover, while state crimes are the most common basis for state juvenile court
jurisdiction, many state juvenile courts enjoy delinquency jurisdiction based upon a violation of
federal law. Thus, an individual under 18 who violates federal criminal law can move through the
state juvenile delinquency system without ever coming into contact with federal authorities.
Contractions in state juvenile court jurisdiction, however, make this less likely than was once the
case. Many states now define juvenile court jurisdiction more narrowly than federal law, in terms
of age or crime or both. Some states also permit the adult criminal trial of a juvenile either
through the exercise of concurrent jurisdiction or a waiver or transfer of jurisdiction under
circumstances the federal courts could not.

1 This report is an abridged version of CRS Report RL30822, Juvenile Delinquents and Federal Criminal Law: The
Federal Juvenile Delinquency Act and Related Matters, by Charles Doyle, without the footnotes, quotations,
attributions of authority, or appendixes found there.
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In most instances, federal law favors dealing with juvenile offenders under state law. Federal
juvenile proceedings are only possible if: relevant state courts are unable or unwilling to proceed;
their juvenile programs are unavailable or inadequate; or the offense is a designated serious
federal offense.
Arrest and Arraignment
The JDA, 18 U.S.C. § 5033, requires that a juvenile taken into federal custody for violating
federal law must be advised of his or her legal rights immediately, and the juvenile’s parents or
guardian must be notified immediately. The courts have held that because federal custody
activates the JDA requirements, these obligations only begin after a juvenile who was initially
detained by state, local, or tribal officials is turned over to federal authorities. The notification
requirement may be excused, however, when the juvenile frustrates reasonable notification
efforts. Much of the case law relating to the federal advice and notification provisions comes
from the U.S. Court of Appeals for the Ninth Circuit, which has held that: (1) the word
“immediate” means the same for both advice and notifications purposes; (2) advice given 4 hours
after arrest and notification given 3½ hours after arrest has not been given “immediately”; (3)
notice given within close to an hour after arrests had been given immediately; (4) parental
notification must include advice as to the juvenile’s rights; (5) parental notification may be
accomplished through the good offices of the surrogate or appropriate foreign consulate when the
juvenile’s parents reside outside of the United States; (6) convictions or delinquency
determinations must be overturned if they are tainted by violations of section 5033 so egregious
as to violate due process; and (7) less egregious but prejudicial violations of section 5033 may
require that any resulting incriminating statements be suppressed.
The juvenile must also be brought before a magistrate for arraignment “forthwith.” At night, on
weekends, or at other times when a magistrate is not immediately available, arraignment may be
within a time reasonable under the circumstances, and a waiver of Miranda rights may be
construed as a waiver of the right to timely presentation. When a magistrate is available,
arraignment may not be delayed simply because the government is proceeding with an abundance
of caution or because the associated paperwork is tedious. Once before the magistrate, the
juvenile is entitled to the assistance of counsel and to have counsel appointed in the case of
indigence. The magistrate may also appoint a guardian ad litem, and, after a hearing before
counsel, order the juvenile detained to guarantee subsequent court appearances or for the safety of
the juvenile or anyone else.
A juvenile under federal detention is entitled to a delinquency hearing within 30 days or to have
the information charging his or her delinquency dismissed with prejudice unless he or she has
contributed or consented to the delay or unless dismissal with prejudice would be contrary to the
interests of justice. This speedy trial requirement runs from the time the juvenile was taken into
federal custody pending judicial proceedings, but does not attach to any period of state detention;
to any period during which the juvenile was being held for purposes other than the pendency of
delinquency proceedings; to any time when the juvenile is not being detained; to delays
attributable to the juvenile’s deception; to the period between an admission or guilty plea and
sentencing; or to the period for which a continuance has been granted at the juvenile’s behest.
Time spent on the government’s appeal is excludable in the interest of justice, as is time spent
litigating the government’s transfer motions, but not when the juvenile was being unlawfully
detained at the time of the government’s motion.
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Initial Stages of Federal Adjudication
Federal law permits federal proceedings against a federal juvenile offender when there is no
realistic state alternative or when the juvenile is accused of a serious federal crime. The
government must certify that it has elected a federal forum. The certificate must assert that either
(1) the state courts are unwilling or unable to proceed against the juvenile for the
misconduct in question; or
(2) the juvenile programs of the state are unavailable or inadequate; or
(3) the offense is a drug dealing or drug smuggling violation, possession of an
undetectable firearm, or a felony and crime of violence and that a substantial federal
interest exists warranting the exercise of federal jurisdiction.
“Because certification requirements are disjunctive, a single basis for certification establishes
jurisdiction.” Although the statute calls for certification by the Attorney General, the authority has
been redelegated to the various United States Attorneys. A facially adequate certification is
generally thought to be beyond judicial review in the absence of evidence of bad faith.
Certification is jurisdictional, however, so that certification by an Assistant United States
Attorney without evidence of the United States Attorney’s approval is insufficient. The
government need not certify the want of, or unwillingness to exercise, tribal as well as state
jurisdiction. “The Attorney General’s certification of a ‘substantial federal interest’ is an act of
prosecutorial discretion that is shielded from judicial review.”
The term “crime of violence” appears, undefined, several times in section 5032. Elsewhere, the
term is defined using an “elements” clause (“The term ‘crime of violence’ means–(a) an offense
that has as an element, the use, attempted use, or threatened use of physical force against the
person or property of another”) or a “risk” clause (“[an] offense . . . that, by its nature, involves a
substantial risk that physical force against the person or property of another may be used in the
course of committing the offense”). In one instance, section 5032, itself, uses an “element” clause
and a “risk” clause rather than the term “crime of violence.”
In other contexts, The Supreme Court has declared the identical language in the “risk” clause or
“residual” clause unconstitutionally vague and inoperable. In the context of section 5032,
prosecutors haverelied on the elements clause and avoided the risk clause.
If the government decides against federal proceedings, the juvenile must either be released or,
under the appropriate conditions, turned over to state authorities. Otherwise, the government
begins the proceedings by filing an information and a statement of the juvenile’s past record with
the district court. Most courts appear to believe that they have no jurisdiction to proceed against a
juvenile until they receive evidence of the juvenile’s prior record. The government may proceed
against a juvenile as an adult only if the child insists, or pursuant to a juvenile court transfer.
Transfers
There are two types of transfers to proceed against a juvenile as an adult under 18 U.S.C. § 5032,
mandatory and discretionary. A transfer is mandatory in the case of a violent felony, drug
trafficking, drug smuggling, or arson, allegedly committed by a juvenile 16 years of age or older
who has previously been found to have committed comparable misconduct. As the language
suggests, the prior felony “conviction” may be either a conviction as an adult or a finding of
delinquency based on conduct that would be felonious if committed by an adult.
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Charges that would support a mandatory transfer if brought against a 16-year-old recidivist may
be used to trigger a discretionary transfer if the juvenile is 15 or older regardless of his or her
prior record; discretionary transfers are also possible for juveniles 13 or older in some cases of
assault, homicide, or robbery.
At least one federal appellate court has rejected contentions that mandatory transfers constitute an
unconstitutional denial of either due process or equal protection. Aside from a denial of a claim of
ineffective assistance of counsel, questions of the constitutionality of the underlying prior
conviction or determination may not be raised at the transfer hearing.
When the transfer is discretionary, juvenile adjudication is presumed appropriate, unless the
government can establish its case for a transfer by a preponderance of the evidence. Section 5032
lays out the factors for the court’s consideration when it is asked to exercise its discretion to
transfer a juvenile in the interest of justice for trial as an adult. “In making its determination, the
court must consider six factors: (1) the age and social background of the juvenile; (2) the nature
of the alleged offense; (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 them; and (6) the availability of programs
designed to treat the juvenile’s behavioral problems.” The purpose of the exercise is to determine
whether the prospects for the juvenile’s rehabilitation are outweighed by the risk of harm that he
poses if not tried as an adult.
A court need not give the factors equal weight as long as the court documents its consideration of
each. The age factor compels the court to consider a juvenile’s age both at the time of the
misconduct and at the time of the transfer hearing. “The older a juvenile delinquent is both at the
time of the alleged offense and at the time of transfer hearing, the more the juvenile defendant’s
age weighs in favor of transfer.” In considering the child’s social background, the courts cite the
child’s family life, both positive and negative, and other social interactions. The second factor
calls for an assessment of both the seriousness of the misconduct alleged and the juvenile’s role in
the transgression. The allegations are taken as true for purposes of the assessment, and allegations
of serious offenses argue strongly for transfer. The third factor requires the court to take into
account “the extent and nature of the juvenile’s prior delinquency record.” This may include the
juvenile’s arrest record in some instances. A clean record, however, is no bar to a transfer, but
may weigh against a transfer. The fourth factor, the juvenile’s “intellectual development and
psychological maturity,” is essentially a matter of whether the juvenile has the mind of a child at
the time of the transfer petition, indicating a receptivity to rehabilitation. The factor may argue
strongly for the transfer of a juvenile wise beyond his years. Moreover, with age, the weight the
courts give to average intellectual development and maturity begins to slip away. In the case of
older juveniles, the courts may find evidence of reduced, or even greatly reduced, development
and maturity insufficient to overcome the counterweight of a serious offense. The fourth factor
attempts to predict whether the juvenile will be receptive to rehabilitative efforts. The fifth factor
evaluates whether the juvenile has been receptive to past rehabilitative efforts. Sometimes, the
factor carries no weight when there have been no past efforts; on other occasions, the want of past
treatment may favor transfer. The final factor is the availability of treatment programs for the
individual either as a juvenile or an adult. The juvenile’s age or offense may make him ineligible
for programs in some instances.
Transfer hearings are considered akin to preliminary hearings. Consequently, other than the rules
of privilege, the Federal Rules of Evidence, including those governing the use of hearsay, do not
apply. A juvenile’s statements “prior to or during a transfer hearing” may not be admitted in
subsequent criminal proceedings. Thus, a juvenile may be required to submit to a psychiatric
examination in connection with the hearing, and the court may base its transfer determinations on
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the results without intruding upon the juvenile’s Fifth Amendment privilege against self-
incrimination. The court’s determination of whether transfer is appropriate is immediately
appealable under an abuse of discretion standard.
The Supreme Court’s decision in Miller v. Alabama, barring imposition of a sentence of life
imprisonment without parole for an offense committed while a juvenile, precludes a transfer
relating to an offense punishable only by death or life imprisonment. It does not preclude a
transfer with respect to an offense punishable alternatively by imprisonment for a term of years. A
court may order a juvenile transferred whose alleged misconduct carries both permissible and
impermissible adult sentences.
Delinquency Hearings
In the absence or failure of a government transfer motion and unless the juvenile insists on an
adult trial, the district court, at its discretion, conducts a delinquency hearing “at any time and
place within the district, in chambers or otherwise.” Neither the right to grand jury indictment nor
to a jury trial is constitutionally required. The Constitution demands many of the other features of
an adult criminal trial, however, including notice of charges, right to counsel, privilege against
self-incrimination, right to confrontation and cross examination, proof beyond a reasonable doubt,
protection against double jeopardy, and application of the Fourth Amendment exclusionary rule.
Disposition
Upon a finding of delinquency, the court schedules either a sentencing hearing or a hearing in
anticipation of a commitment for examination prior to sentencing. At sentencing, the court may
dispose of a juvenile delinquency case by suspending sentence, by ordering restitution or
probation, or by committing the juvenile to the custody of the Attorney General for detention. The
Sentencing Guidelines do not apply to detention ordered pursuant to federal juvenile delinquency
proceedings. Some recent cases reflect the view that a sentencing court need not opt for the least-
restrictive disposition needed to secure the juvenile’s rehabilitation.
Unless the court suspends sentence, section 5037 establishes a series of time limits that restrict
the court’s authority when it orders detention, when it imposes or revokes probation, and when it
imposes or revokes a period of juvenile delinquent supervision.
Section 5037(c) provides different detention limitations depending upon whether the dispositional
hearing occurs when the individual is under 18 years of age or is between 18 and 21 years of age.
In the case of a juvenile under 18, the court may order a term of detention no longer than the
shorter of (A) the date the juvenile will turn 21; (B) the term at the top of the sentencing range
under the Sentencing Guidelines that would apply had the juvenile been an adult; or (C) the
maximum term of imprisonment that would apply had the juvenile been an adult.
The detention limits for juveniles between the ages of 18 and 21 depend on the seriousness of the
misconduct that led to the delinquency determination. If the misconduct would have been
punishable by imprisonment for a maximum of 12 years or more, the term of detention may be no
longer than the sooner of (i) five years, or (ii) the top of the Sentencing Guideline range
applicable to adults under comparable circumstances. If less serious misconduct led to the
delinquency determination, the court may order detention for no longer than the sooner of (i)
three years; (ii) the top of the Sentencing Guideline range; or (iii) the maximum term of
imprisonment that an adult would have faced under the circumstances.
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The time limits for probation are comparable. The court may set the term of probation for a
juvenile under 18 years of age at no longer than the sooner of (A) the date on which the juvenile
will turn 21 years of age; or (B) five years (or one year if the misconduct in an adult would be
punishable by imprisonment for not more than five days). For juveniles between the ages of 18
and 21, the limit is the shorter of (A) three years; or (B) one year (if the misconduct in an adult
would be punishable by imprisonment for not more than five days). The adult mandatory and
discretion condition statutes apply, including the requirement that any discretion conditions
involve only such deprivations of liberty or property as are reasonably necessary to comply with
statutory sentencing principles.
The court may later revise or revoke a juvenile’s probation and order the juvenile’s detention for
violation of his probation conditions. Detention authority following revocation mirrors the court’s
initial detention authority with two exceptions. First, regardless of the juvenile’s age at the time
of revocation, the court is initially governed by the time limits that apply to the detention of
juveniles between the ages of 18 and 21. Second, an individual who is 21 years of age or older
may not be detained beyond the age of 23, or beyond the age of 25 if the misconduct is
punishable by imprisonment for 12 years or more. Subject to those restrictions, when the
misconduct that resulted in the delinquency determination would be punishable by a maximum
term of imprisonment of 12 years or more, the court may order a term of detention no longer than
the shorter of (i) five years; or (ii) the term at the top of the sentencing range under the
Sentencing Guidelines that would apply had the juvenile been an adult. For less serious forms of
misconduct, the limit is the shorter of (i) three years; (ii) the term at the top of the sentencing
range under the Sentencing Guidelines that would apply had the juvenile been an adult; or (iii) the
maximum term of imprisonment that would apply had the juvenile been an adult.
When a court orders juvenile detention, it may also impose a term of juvenile delinquent
supervision to be served after the individual’s release from detention. Juvenile delinquent
supervision has its own time limits and its own set of conditions. The conditions are the same as
those available when the court sentences a juvenile to probation. The initial term of juvenile
delinquent supervision may not exceed the juvenile’s 21st birthday if the individual is under the
age of 18 when the detention order is issued. If the individual is between 18 and 21 when the
detention order is issued, the initial time limits for supervision are those that apply to detention,
less the time served in detention. Thus, when the misconduct that resulted in the delinquency
determination would be punishable by a maximum term of imprisonment of 12 years or more, the
court may order a term of supervision no longer than the shorter of (i) five years; or (ii) the term
at the top of the sentencing range under the Sentencing Guidelines that would apply had the
juvenile been an adult. For less serious forms of misconduct, the limit is the shorter of (i) three
years; (ii) the term at the top of the sentencing range under the Sentencing Guidelines that would
apply had the juvenile been an adult; or (iii) the maximum term of imprisonment that would apply
had the juvenile been an adult.
Violation of the conditions of supervision may lead to further terms of detention and juvenile
delinquent supervision. The maximum term of detention following revocation of a term of
supervision is the same as the maximum term of detention following revocation of probation, less
time served in detention. That is, when the misconduct that resulted in the delinquency
determination would be punishable by a maximum term of imprisonment of 12 years or more, the
court may order a term of supervision no longer than the shorter of (i) five years; (ii) the term at
the top of the sentencing range under the Sentencing Guidelines that would apply had the juvenile
been an adult; or (iii) the time before which the individual turns 26 years of age. For less serious
forms of misconduct, the limit is the shorter of (i) three years; (ii) the term at the top of the
sentencing range under the Sentencing Guidelines that would apply had the juvenile been an
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adult; (iii) the maximum term of imprisonment that would apply had the juvenile been an adult;
or (iv) the time before which the individual turns 24.
Section 5037(d)(6) is somewhat cryptic about the term limits on the juvenile delinquent
supervision imposed after revocation. It makes no mention of the limits in place when the
individual is less than 18 years of age or between 18 and 21 years of age. As for individuals over
21 years of age, it declares that the term of juvenile delinquent supervision “shall be in
accordance with the provisions of section 5037(d)(1),” with the exception of the usual bars on
supervision over individuals once they reach either 24 or 26 years of age depending on the
seriousness of their original misconduct.
The difficulty stems in part from the fact that section 5037(d)(1) says nothing about time limits. It
merely states that “[t]he court, in ordering a term of official detention, may include the
requirement that the juvenile be placed on a term of juvenile delinquent supervision after official
detention.” One appellate court has held that “the maximum term of supervision that a court may
impose under § 5037(d)(6) is determined by the requirements in § 5037(d)(2), using the
juvenile’s age at the time of the revocation hearing.”
Juvenile Records and Conditions of Custody
One of the hallmarks of the JDA is its effort to shield juveniles from some of the harsh
consequences of exposure to the criminal justice system. Before and after being taken into
custody, and before and after being found delinquent, it refuses to allow juveniles to be
interspersed with adults who are awaiting trial for, or have been convicted of, criminal offenses.
In the same spirit, ordinarily federal juvenile records are sealed for all purposes other than judicial
inquiries, law enforcement needs, juvenile treatment requirements, employment in a position
raising national security concerns, or disposition questions from victims. This does not render
otherwise admissible evidence of juvenile proceedings inadmissible in criminal proceedings.
Moreover, in response to media requests the court will balance the competing interests, which
weigh heavily in favor of confidentiality; and, in light of the Crime Victims’ Rights Act, the court
may permit the government to notify the victim of a juvenile threat of the status of proceedings
against the juvenile, without identifying him.
The Sex Offender Registration and Notification Act dictates when a federal juvenile delinquent
must register as a sex offender, notwithstanding apparent conflicts with the confidentiality
provisions that govern juvenile records.
Juveniles Tried as Adults
Juveniles transferred for trial as adults in federal court are essentially treated as adults, with few
distinctions afforded or required because of their age. At one time, even the Sentencing
Guidelines instructed sentencing judges that an offender’s youth was not ordinarily a permissible
ground for reduction of the otherwise applicable Sentencing Guideline range. The Sentencing
Commission has since amended the guideline to permit consideration of the defendant’s age in
atypical cases.
The Constitution’s Cruel and Unusual Punishments Clause limits the sentence that a court may
impose upon a juvenile tried as an adult. The Supreme Court has decided that the “death penalty
cannot be imposed upon juvenile offenders.” Nor can life imprisonment without the possibility of
parole be imposed upon a juvenile offender for a non-homicide offense. Nor may a sentence of
mandatory life without the possibility of parole be imposed for a homicide committed by a
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juvenile under the age of 18. Nevertheless, a sentencing court need not find that a juvenile is
permanently incorrigible before imposing a discretionary sentence of life without parole.
A federal court may sentence a juvenile to a term of imprisonment which, given his life
expectancy and abolition of federal parole, can effectively constitute a sentence of life without
parole.

Author Information

Charles Doyle

Senior Specialist in American Public Law

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