§ 5032. — Delinquency proceedings in district courts; transfer for criminal prosecution.
[Laws in effect as of January 7, 2003]
[Document not affected by Public Laws enacted between
January 7, 2003 and December 19, 2003]
[CITE: 18USC5032]
TITLE 18--CRIMES AND CRIMINAL PROCEDURE
PART IV--CORRECTION OF YOUTHFUL OFFENDERS
CHAPTER 403--JUVENILE DELINQUENCY
Sec. 5032. Delinquency proceedings in district courts; transfer
for criminal prosecution
A juvenile alleged to have committed an act of juvenile delinquency,
other than a violation 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, shall not be
proceeded against in any court of the United States unless the Attorney
General, after investigation, certifies to the appropriate district
court of the United States that (1) the juvenile court or other
appropriate court of a State does not have jurisdiction or refuses to
assume jurisdiction over said juvenile with respect to such alleged act
of juvenile delinquency, (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 that is a felony or an offense described
in section 401 of the Controlled Substances Act (21 U.S.C. 841), or
section 1002(a), 1003, 1005, 1009, or 1010(b)(1), (2), or (3) of the
Controlled Substances Import and Export Act (21 U.S.C. 952(a), 953, 955,
959, 960(b)(1), (2), (3)), section 922(x) or section 924(b), (g), or (h)
of this title, and that there is a substantial Federal interest in the
case or the offense to warrant the exercise of Federal jurisdiction.
If the Attorney General does not so certify, such juvenile shall be
surrendered to the appropriate legal authorities of such State. For
purposes of this section, the term ``State'' includes a State of the
United States, the District of Columbia, and any commonwealth,
territory, or possession of the United States.
If an alleged juvenile delinquent is not surrendered to the
authorities of a State pursuant to this section, any proceedings against
him shall be in an appropriate district court of the United States. For
such purposes, the court may be convened at any time and place within
the district, in chambers or otherwise. The Attorney General shall
proceed by information or as authorized under section 3401(g) of this
title, and no criminal prosecution shall be instituted for the alleged
act of juvenile delinquency except as provided below.
A juvenile who is alleged to have committed an act of juvenile
delinquency and who is not surrendered to State authorities shall be
proceeded against under this chapter unless he has requested in writing
upon advice of counsel to be proceeded against as an adult, except that,
with respect to a juvenile fifteen years and older alleged to have
committed an act after his fifteenth birthday which if committed by an
adult would be a felony that is a crime of violence or an offense
described in section 401 of the Controlled Substances Act (21 U.S.C.
841), or section 1002(a), 1005, or 1009 of the Controlled Substances
Import and Export Act (21 U.S.C. 952(a), 955, 959), or section 922(x) of
this title, or in section 924(b), (g), or (h) of this title, criminal
prosecution on the basis of the alleged act may be begun by motion to
transfer of the Attorney General in the appropriate district court of
the United States, if such court finds, after hearing, such transfer
would be in the interest of justice. In the application of the preceding
sentence, if the crime of violence is an offense under section 113(a),
113(b), 113(c), 1111, 1113, or, if the juvenile possessed a firearm
during the offense, section 2111, 2113, 2241(a), or 2241(c),
``thirteen'' shall be substituted for ``fifteen'' and ``thirteenth''
shall be substituted for ``fifteenth''. Notwithstanding sections 1152
and 1153, no person subject to the criminal jurisdiction of an Indian
tribal government shall be subject to the preceding sentence for any
offense the Federal jurisdiction for which is predicated solely on
Indian country (as defined in section 1151), and which has occurred
within the boundaries of such Indian country, unless the governing body
of the tribe has elected that the preceding sentence have effect over
land and persons subject to its criminal jurisdiction. However, a
juvenile who is alleged to have committed an act after his sixteenth
birthday which if committed by an adult would be a felony offense that
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, or would be an
offense described in section 32, 81, 844(d), (e), (f), (h), (i) or 2275
of this title, subsection (b)(1)(A), (B), or (C), (d), or (e) of section
401 of the Controlled Substances Act, or section 1002(a), 1003, 1009, or
1010(b)(1), (2), or (3) of the Controlled Substances Import and Export
Act (21 U.S.C. 952(a), 953, 959, 960(b)(1), (2), (3)), and who has
previously been found guilty of an act which if committed by an adult
would have been one of the offenses set forth in this paragraph or an
offense in violation of a State felony statute that would have been such
an offense if a circumstance giving rise to Federal jurisdiction had
existed, shall be transferred to the appropriate district court of the
United States for criminal prosecution.
Evidence of the following factors shall be considered, and findings
with regard to each factor shall be made in the record, in assessing
whether a transfer would be in the interest of justice: 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. In considering the nature of the offense, as
required by this paragraph, 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. Such a
factor, if found to exist, shall weigh in favor of a transfer to adult
status, but the absence of this factor shall not preclude such a
transfer.
Reasonable notice of the transfer hearing shall be given to the
juvenile, his parents, guardian, or custodian and to his counsel. The
juvenile shall be assisted by counsel during the transfer hearing, and
at every other critical stage of the proceedings.
Once a juvenile has entered a plea of guilty or the proceeding has
reached the stage that evidence has begun to be taken with respect to a
crime or an alleged act of juvenile delinquency subsequent criminal
prosecution or juvenile proceedings based upon such alleged act of
delinquency shall be barred.
Statements made by a juvenile prior to or during a transfer hearing
under this section shall not be admissible at subsequent criminal
prosecutions.
Whenever a juvenile transferred to district court under this section
is not convicted of the crime upon which the transfer was based or
another crime which would have warranted transfer had the juvenile been
initially charged with that crime, further proceedings concerning the
juvenile shall be conducted pursuant to the provisions of this chapter.
A juvenile shall not be transferred to adult prosecution nor shall a
hearing be held under section 5037 (disposition after a finding of
juvenile delinquency) until any prior juvenile court records of such
juvenile have been received by the court, or the clerk of the juvenile
court has certified in writing that the juvenile has no prior record, or
that the juvenile's record is unavailable and why it is unavailable.
Whenever a juvenile is adjudged delinquent pursuant to the
provisions of this chapter, the specific acts which the juvenile has
been found to have committed shall be described as part of the official
record of the proceedings and part of the juvenile's official record.
(June 25, 1948, ch. 645, 62 Stat. 857; Pub. L. 93-415, title V,
Sec. 502, Sept. 7, 1974, 88 Stat. 1134; Pub. L. 98-473, title II,
Sec. 1201, Oct. 12, 1984, 98 Stat. 2149; Pub. L. 100-690, title VI,
Sec. 6467(a), Nov. 18, 1988, 102 Stat. 4375; Pub. L. 101-647, title XII,
Sec. 1205(n), title XXXV, Sec. 3599G, Nov. 29, 1990, 104 Stat. 4831,
4932; Pub. L. 103-322, title XI, Sec. 110201(c)(2), title XIV,
Secs. 140001, 140002, title XV, Sec. 150002, Sept. 13, 1994, 108 Stat.
2012, 2031, 2035; Pub. L. 104-294, title VI, Sec. 601(c)(1), (g)(1),
Oct. 11, 1996, 110 Stat. 3499, 3500.)
Historical and Revision Notes
Based on title 18, U.S.C., 1940 ed., Sec. 922 (June 16, 1938, ch.
486, Sec. 2, 52 Stat. 765).
The final sentence of said section 922 of title 18, U.S.C., 1940
ed., was incorporated in section 5033 of this title.
Changes were made in arrangement and phraseology.
Codification
Another section 502 of title V of Pub. L. 93-415, as added by Pub.
L. 107-273, div. C, title II, Sec. 12222(a), Nov. 2, 2002, 116 Stat.
1894, is classified to section 5781 of Title 42, The Public Health and
Welfare.
Another section 502 of title V of Pub. L. 93-415, as added by Pub.
L. 102-586, Sec. 5(a), Nov. 4, 1992, 106 Stat. 5027, was classified to
section 5781 of Title 42, The Public Health and Welfare, prior to the
general amendment of that title V by Pub. L. 107-273.
Amendments
1996--Pub. L. 104-294, in first par., inserted ``section 922(x)''
before ``or section 924(b)'' and struck out ``or (x)'' after ``or (h)'',
and in third par., inserted ``or as authorized under section 3401(g) of
this title'' after ``shall proceed by information''.
1994--Pub. L. 103-322, Sec. 150002(1), substituted ``924(b), (g), or
(h)'' for ``922(p)'' in first par.
Pub. L. 103-322, Sec. 110201(c)(2)(A), inserted ``or (x)'' after
``922(p)'' in first par.
Pub. L. 103-322, Sec. 140001, in fourth par., substituted ``. In the
application of the preceding sentence, if the crime of violence is an
offense under section 113(a), 113(b), 113(c), 1111, 1113, or, if the
juvenile possessed a firearm during the offense, section 2111, 2113,
2241(a), or 2241(c), `thirteen' shall be substituted for `fifteen' and
`thirteenth' shall be substituted for `fifteenth'. Notwithstanding
sections 1152 and 1153, no person subject to the criminal jurisdiction
of an Indian tribal government shall be subject to the preceding
sentence for any offense the Federal jurisdiction for which is
predicated solely on Indian country (as defined in section 1151), and
which has occurred within the boundaries of such Indian country, unless
the governing body of the tribe has elected that the preceding sentence
have effect over land and persons subject to its criminal jurisdiction.
However'' for ``; however''.
Pub. L. 103-322, Secs. 110201(c)(2)(B), 150002(2), inserted ``or
section 922(x) of this title, or in section 924(b), (g), or (h) of this
title,'' before ``criminal prosecution on the basis'' in fourth par.
Pub. L. 103-322, Sec. 150002(3), inserted at end of fifth par. ``In
considering the nature of the offense, as required by this paragraph,
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. Such a factor, if
found to exist, shall weigh in favor of a transfer to adult status, but
the absence of this factor shall not preclude such a transfer.''
Pub. L. 103-322, Sec. 140002, substituted ``A juvenile shall not be
transferred to adult prosecution nor shall a hearing be held under
section 5037 (disposition after a finding of juvenile delinquency)
until'' for ``Any proceedings against a juvenile under this chapter or
as an adult shall not be commenced until'' in tenth par.
1990--Pub. L. 101-647 inserted definition of ``State'' at end of
second par., struck out ``or the District of Columbia'' after ``to the
authorities of a State'' in third par., and substituted ``offenses set
forth in this paragraph'' for ``offenses set forth in this subsection''
in fourth par.
1988--Pub. L. 100-690, Sec. 6467(a)(1), substituted ``section 401 of
the Controlled Substances Act (21 U.S.C. 841), or section 1002(a), 1003,
1005, 1009, or 1010(b)(1), (2), or (3) of the Controlled Substances
Import and Export Act (21 U.S.C. 952(a), 953, 955, 959, 960(b)(1), (2),
(3)), or section 922(p) of this title,'' for ``section 841, 952(a), 955,
or 959 of title 21,'' in first par.
Pub. L. 100-690, Sec. 6467(a)(2), substituted ``section 401 of the
Controlled Substances Act (21 U.S.C. 841), or section 1002(a), 1005, or
1009 of the Controlled Substances Import and Export Act (21 U.S.C.
952(a), 955, 959),'' for ``section 841, 952(a), 955, or 959 of title
21,'' and inserted ``subsection (b)(1)(A), (B), or (C), (d), or (e) of
section 401 of the Controlled Substances Act, or section 1002(a), 1003,
1009, or 1010(b)(1), (2), or (3) of the Controlled Substances Import and
Export Act (21 U.S.C. 952(a), 953, 959, 960(b)(1), (2), (3)),'' after
``2275 of this title,'' in fourth par.
1984--Pub. L. 98-473, Sec. 1201(a), amended first par. generally,
inserting ``, other than a violation 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,''
before ``shall not be proceeded'', inserting ``(1)'' before ``the
juvenile court'', striking out ``(1)'' before ``does not have'',
inserting ``the State'' after ``(2)'', and inserting ``, or (3) the
offense charged is a crime of violence that is a felony, or an offense
described in section 841, 952(a), 955, or 959 of title 21, and that
there is a substantial Federal interest in the case or the offense to
warrant the exercise of Federal jurisdiction.''
Pub. L. 98-473, Sec. 1201(b)(1), which directed the amendment of
fourth par. by substituting ``that is a crime of violence or an offense
described in section 841, 952(a), 955, or 959 of title 21'' for
``punishable by a maximum penalty of ten years imprisonment or more,
life imprisonment or death'' was executed by substituting the quoted
wording for ``punishable by a maximum penalty of ten years imprisonment
or more, life imprisonment, or death'' as the probable intent of
Congress.
Pub. L. 98-473, Sec. 1201(b)(2), substituted ``fifteen'' for
``sixteen'' and ``fifteenth'' for ``sixteenth'' in fourth par.
Pub. L. 98-473, Sec. 1201(b)(3), inserted provision at end of fourth
par., relating to transfer of a juvenile who is alleged to have
committed certain acts after his sixteenth birthday to the appropriate
district court of the United States for criminal prosecution.
Pub. L. 98-473, Sec. 1201(c), added three pars. at end of section
relating to juveniles not convicted of crimes in district court,
reception of prior juveniles court records by the court, and description
of the specific act of delinquency for the record.
1974--Pub. L. 93-415 amended section generally, substituting
``Delinquency proceedings in district courts; transfer for criminal
prosecution'', for ``Proceedings against juvenile delinquent'' in
section catchline, inserting provisions relating to certification to,
and procedures in, district courts, transfer upon motion by Attorney
General with respect to a juvenile sixteen years and older, factors
considered in transfer, notice of transfer, barring of subsequent
criminal or juvenile delinquency proceedings upon entering plea of
guilty or upon taking of evidence, and admissibility of statements by a
juvenile in subsequent criminal prosecution, and substituting provision
relating to consent upon advice of counsel for treatment as an adult,
for provision requiring consent for treatment as a juvenile.
Section Referred to in Other Sections
This section is referred to in sections 751, 3401, 5001, 5038 of
this title.
