Oklahoma Bar Journal
Defending Juveniles in Federal Court: An Overview of the Juvenile Justice and Delinquency Prevention Act
By Chance Cammack
The impact of McGirt v. Oklahoma is far-reaching. One of the many consequences of the Gorsuch decision is that Indian children who commit crimes in the Northern and Eastern districts of Oklahoma are facing the harsh reality of being prosecuted in federal court. Since the McGirt decision, 29 cases have been filed against juveniles in the Northern and Eastern districts of Oklahoma. Prior to McGirt, federal juvenile cases were practically unheard of in Oklahoma. The federal system and the juvenile delinquency act were not designed to handle a high number of juveniles’ cases. This article provides an overview of the Federal Juvenile Delinquency Act and a guide for practitioners who seek to represent juveniles in federal court.
THE FEDERAL JUVENILE DELINQUENCY ACT AND JUVENILE PROCEEDINGS
The federal juvenile delinquency statutes are codified in Title 18 of the United States Code sections 5031 to 5043. An attorney who takes on a federal juvenile case should carefully read the juvenile act. The purpose of the Federal Juvenile Delinquency Act “is to remove juveniles from the ordinary criminal process in order to avoid the stigma of a prior criminal conviction and to encourage treatment and rehabilitation.” The “legal and practical benefits of being tried as a juvenile … include pretrial detention in a foster home or community-based facility near the juvenile's home instead of an adult prison; and the sealing of the records and the withholding of the juvenile's name and picture from the media.” Juvenile proceedings are viewed as civil rather than criminal proceedings.
All juvenile proceedings begin with the filing of an information by the United States attorney. A grand jury indictment is not required. All pleadings and filings should be made under seal. The statute forbids the disclosure of the records in the case except for limited and specific circumstances. “Section 5038 … requires the sealing of the entire file and record of [the juvenile] proceeding and prohibits later release, other than to meet an enumerated exception.” The courtroom should be cleared and sealed, and all parties should be announced prior to beginning any proceedings.
Typically, before an information can be brought in district court, the U.S. attorney must certify the district court is the proper venue. However, because McGirt held that most of eastern Oklahoma is Indian Territory, Indian children who commit acts of delinquency in those areas of Oklahoma are subject to federal jurisdiction.
Once an information has been filed, the government has 30 days to adjudicate the juvenile as delinquent. The first step is an appearance before a United States magistrate judge. The juvenile has a right to be represented by counsel “before proceeding with the critical stages of the proceedings.” The magistrate judge will conduct a detention hearing on the day the juvenile is arraigned. The act favors the release of a juvenile unless the magistrate judge determines detention is necessary to secure the juvenile’s appearance in court or to ensure the juvenile’s safety or the safety of the community. If the juvenile is detained, the act requires that the juvenile be provided with education and medical care, including necessary psychiatric and psychological care. Counsel should coordinate with the U.S. marshal to ensure their client is being confined in a facility separate from the adults and that their educational and medical needs are being met. The court may appoint a guardian ad litem to represent the juvenile’s best interests. A guardian ad litem can be beneficial when a parent is absent or not involved or there is a potential conflict of interest, for example, when a sibling is a codefendant. While the guardian ad litem is an officer of the court, they do not have the protection of attorney-client privilege with the juvenile. The guardian ad litem should not discuss the nature and circumstances of the case without the juvenile’s attorney present.
ADJUDICATION AND DISPOSITION HEARINGS
At the adjudication hearing, the juvenile may admit or deny responsibility for the alleged offense. If the juvenile denies responsibility, they may have a bench trial where the judge must find guilt beyond a reasonable doubt. A juvenile does not have a constitutional right to a trial by jury. Additionally, juvenile proceedings are “analogous to preliminary examinations in criminal cases” and, therefore, the federal rules of evidence do not apply. If the juvenile is found to be delinquent, the court must hold a disposition hearing within 20 days. The disposition hearing should be treated like a sentencing hearing as the court will consider the policy statements promulgated by 28 U.S.C. §994, which includes the sentencing factors under 18 U.S.C. 3553(a). “The objectives are to provide measures of guidance and rehabilitation for the child and protection for society, not to fix criminal responsibility, guilt and punishment.” Prior to the disposition hearing, counsel should file a disposition memorandum to educate the court of the juvenile’s history and other factors the court should consider when formulating the sentence. It may be advantageous to waive the speedy trial requirements in 18 U.S.C. §5036 to obtain evaluations and the necessary background information to advocate for the juvenile to remain in the community. Records may be obtained by subpoenas duces tecum pursuant to Rule 17(c) of the Federal Rules of Criminal Procedure. The Northern and Eastern districts of Oklahoma have general orders outlining the procedures for obtaining subpoenas. Additionally, parents or guardians ad litem can assist in gathering school and medical records.
At the disposition hearing, the court may order the juvenile to a term of probation or may sentence the juvenile to official detention. If the juvenile is less than 18 years of age at the time of the disposition, the term may not extend beyond the lesser of the date the juvenile becomes 21 or the maximum term that would have been authorized by 18 U.S.C. §3561(c) had the juvenile been tried and convicted as an adult. If the juvenile is between 18 and 21 years of age, the term may not extend beyond the lesser of three years or the maximum term that would have been authorized by 18 U.S.C. §3561(c) had the juvenile been tried and convicted as an adult. If a person commits an act of juvenile delinquency but charges are not brought until after the person turns 21, the juvenile act is not applicable, and the person must be tried as an adult. Allowing the juvenile to remain in the community and serve a term of probation best serves the goal of rehabilitation. If the juvenile is allowed to remain in the community, the probation office will formulate a treatment plan and work with providers in the community to best meet the needs of the juvenile. The court may not sentence an adjudicated juvenile to supervised release in addition to a term of official detention.
If the court elects to sentence the juvenile to a term of detention, 18 U.S.C. §5037(c) provides the statutory time limits for which official detention may be ordered. If the juvenile is less than 18 years old at the time of sentencing, the court shall impose the lesser of either the date when the juvenile turns 21, the maximum of the guideline range of a similarly situated adult defendant or the maximum term that would be authorized had the juvenile been an adult. Regardless of the crime, no term of detention may continue beyond the juvenile’s 26th birthday. There are only three juvenile detention centers used by the Federal Bureau of Prisons to detain juveniles in the entire country. If the juvenile violates a condition of their supervision, the court may revoke their supervision and sentence the juvenile to a term of detention.
Most of the litigation around juvenile proceedings involves the transfer of the juvenile to criminal jurisdiction. The presumption is that a child should remain a juvenile. All courts in the United States allow for adult prosecutions of juveniles by some transfer method. In some instances, transfer is mandatory. If the juvenile is 16 or older and is charged with a felony offense involving the use or potential use of physical force or an enumerated drug offense and the juvenile has a previous adjudication from the same list of offenses, the juvenile shall be transferred to district court for criminal prosecution. When the government files a motion to transfer, the juvenile’s speedy trial rights are tolled. Unless, after advice from counsel, the juvenile elects to stipulate to the transfer, counsel should file an objection to the government’s motion to transfer. A juvenile may choose to waive their rights under the act and can proceed with adult prosecution. This may be an effective strategy for a juvenile who will likely be transferred for adult prosecution, where the government offers a favorable plea agreement.
IS TRANSFER IN THE INTEREST OF JUSTICE?
The government bears the burden of proof by a preponderance of the evidence that transfer to adult status is warranted. Juvenile adjudication is preferred under the act. “Juvenile adjudication is presumed appropriate unless the government establishes that prosecution as an adult is warranted in the interest of justice.” The district court must consider the six factors set forth in §5032 and make findings on the record. When deciding whether to transfer a juvenile for adult prosecution, 18 U.S.C. §5032 sets forth the following factors the court must consider: 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 the 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. The question the district court must decide is whether “transfer would be in the interest of justice.” “It is incumbent upon the court to deny a motion to transfer where, all things considered, a juvenile has a realistic chance of rehabilitative potential in available treatment facilities during the period of minority.”
The objection to the motion to transfer should address the six factors the court is required to consider. Counsel should request records that would be beneficial for the court to see the whole picture of the juvenile’s circumstances, such as DHS, school and medical records. Additionally, it is often helpful to have a psychological evaluation performed. The government often requests that the court order the juvenile to participate in their own psychological evaluation. Counsel should object to the government’s request as it is unnecessary and duplicative and often leads to a “battle of the experts” instead of the needs of the juvenile and whether they are amenable to treatment. Statements made by the juvenile during these evaluations are not admissible in subsequent criminal prosecutions. The district court must consider and make findings regarding each factor. The district court can weigh each factor as it so chooses and may balance them as it finds appropriate. The court does not have to state if one factor favors or disfavors transfer. Often, the nature of the offense will carry the most weight and be the deciding factor.
The district court’s decision of whether to transfer or not transfer the juvenile to adult criminal prosecution is immediately appealable through an interlocutory appeal. The 10th Circuit reviews transfer decisions for abuse of discretion, and the appellant bears “a heavy burden” when seeking to overturn the district court’s decision. Once the juvenile is transferred, federal prosecution proceeds as it would in any criminal case.
Currently, the United States Attorney’s Office is only bringing the most serious juvenile cases to federal court. Cases involving murder and sexual assault have made up the majority of juvenile cases filed in the Northern and Eastern districts. However, as the courts and probation offices become more comfortable with handling juvenile adjudications, it is likely that juvenile cases filed in federal court will continue to increase. The more prepared and knowledgeable defense counsel can be when handling these cases, the better likelihood the juvenile will remain a juvenile and not be transferred for adult prosecution.
Author’s Note: Assistant federal defender Alexis Gardner and interim federal defender for the Eastern District of Oklahoma Scott Graham also contributed to the writing of this article.
ABOUT THE AUTHOR
Chance Cammack is a research and writing specialist for the federal public defender in the Northern District of Oklahoma. He is a graduate of OSU and the Tulane University Law School.
 United States v. Brian N., 900 F.2d 218, 220 (10th Cir.1990).
 United States v. David A., 436 F.3d 1201, 1205 (10th Cir. 2006).
 United States v. Duboise, 604 F.2d 648, 649-50 (10th Cir. 1979) (The object of the proceeding under the Juvenile Delinquency Act is to determine the youth's status as a delinquent. It is a civil rather than a criminal prosecution.).
 18 U.S.C. §5032.
 18 U.S.C. §5038.
 United States v. Bates, 617 F.2d 585, 586-87 (10th Cir. 1980).
 United States v. Juv. Male, 404 F. App'x 805, 806 (4th Cir. 2010).
 18 U.S.C. §5036; United States v. David A., 436 F.3d 1201, 1206 (10th Cir. 2006).
 18 U.S.C. §5034.
 18 U.S.C. §5035.
 18 U.S.C. §5035 requires, “Every juvenile in custody shall be provided with adequate food, heat, light, sanitary facilities, bedding, clothing, recreation, education, and medical care, including necessary psychiatric, psychological, or other care and treatment.”
 In re Winship, 397 U.S. 358, 368, 90 S. Ct. 1068, 1075, 25 L. Ed. 2d 368 (1970) “In sum, the constitutional safeguard of proof beyond a reasonable doubt is as much required during the adjudicatory stage of a delinquency proceeding as are those constitutional safeguards applied in Gault – notice of charges, right to counsel, the rights of confrontation and examination, and the privilege against self-incrimination.”
 McKeiver v. Pennsylvania, 403 U.S. 528, 545, 91 S. Ct. 1976, 1986, 29 L. Ed. 2d 647 (1971).
 United States v. SLW, 406 F.3d 991, 995 (8th Cir. 2005).
 18 U.S.C. §5037.
 Kent v. United States, 383 U.S. 541, 554 (1966).
 See Northern District of Oklahoma General Order 21-34; Eastern District of Oklahoma General Order 21-13.
 18 U.S.C. §5037.
 18 U.S.C. §5037(b)(1).
 18 U.S.C. §5037(b)(2).
 See United States v. Hoo, 825 F.2d 667, 669-70 (2d Cir. 1987), cert. denied 484 U.S. 1035 (1988).
 United States v. Doe, 53 F3d. 1081, 1083-84.
 18 U.S.C. §5037(c)(1)(A-C).
 Id. at §5037(b)(2)(B).
 Id. at §5037(d)(5).
 United States v. Lopez, 860 F .3d 201, 210 (4th Cir. 2017) ("Rather, the JDA [Juvenile Delinquency Act] is intended to ensure that at the time they are brought into the criminal justice process, juveniles will have the benefit of a system that is tailored to their special receptivity to rehabilitation."); United States v. Juvenile, 347 F.3d 778, 786-87 (9th Cir. 2003) ("Moreover, if the primary goal of the federal juvenile justice system is no longer rehabilitation, as the government asserts, then the lessened due process protections afforded under the system would become extremely problematic.").
 Peterson Tavil, “Mandatory Transfer of Juveniles to Adult Court: A Deviation from the Purpose of the Juvenile Justice System and A Violation of Their Eight Amendment Rights,” 52 Rev. Jur. U.I.P.R. 377, 399 (2018).
 18 U.S.C. §5032; Major Richard L. Palmatier Jr., “Criminal Offenses by Juveniles on the Federal Installation: A Primer on 18 U.S.C. § 5032," Army Law., January 1994, at 3, 6.
 United States v. David A., 436 F.3d 1201, 1207 (10th Cir. 2006).
 United States v. Leon D.M., 132 F.3d 583, 589 (10th Cir. 1997).
 United States v. McQuade Q., 403 F.3d 717, 719 (10th Cir. 2005).
 18 U.S.C. §5032.
 United States v. One Juv. Male, 51 F. Supp. 2d 1094 (D. Or. 1999).
 18 U.S.C. 5032; United States v. J.D., 517 F. Supp. 69, 73-74 (S.D.N.Y. 1981) (“It is all but inevitable that in the course of any psychiatric evaluations of these defendants, the psychiatrists will inquire into the defendants' social backgrounds, previous delinquency, criminal experience, and other matters. Such inquiry is not prohibited by this opinion. What is prohibited is use of the defendants' statements about those subjects, in this or any subsequent proceeding, as proof of their content, rather than as verbal acts of diagnostic significance in the psychiatrists' evaluations of the defendants' psychological maturity, intellectual development, and possible mental defects.”).
 United States v. McQuade Q., 403 F.3d 717, 719–20 (10th Cir. 2005).
“We noted that every circuit that has addressed the question had concluded that an order transferring a juvenile to adult status is immediately appealable under the collateral order doctrine.” And, “Because the Double Jeopardy Clause prohibits a second prosecution for the same offense, United States v. Hawley, 93 F.3d 682, 687 (10th Cir. 1996), the government will forever lose the opportunity to try a particular defendant as an adult if it cannot immediately appeal the denial of a motion to transfer.” United States v. Leon D.M., 132 F.3d 583, 587 (10th Cir. 1997).
 Id. at 590.
Originally published in the Oklahoma Bar Journal – OBJ 94 Vol 3 (March 2023)