18 U.S.C. § 5032 — Untitled legal text

Page 947 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 5032 Sec. 5034. Duties of magistrate judge. 5035. Detention prior to disposition. 5036. Speedy trial. 5037. Dispositional hearing. 5038. Use of juvenile records. 5039. Commitment. 5040. Support. 5041. Repealed. 5042. Revocation of probation. 5043. Juvenile solitary confinement. Editorial Notes AMENDMENTS 2018—Pub. L. 115–391, title VI, § 613(b), Dec. 21, 2018, 132 Stat. 5249, added item 5043. 1990—Pub. L. 101–647, title XXXV, § 3599H, Nov. 29, 1990, 104 Stat. 4932, substituted ‘‘probation’’ for ‘‘Proba- tion’’ in item 5042. 1984—Pub. L. 98–473, title II, § 214(d), Oct. 12, 1984, 98 Stat. 2014, substituted ‘‘Repealed’’ for ‘‘Parole’’ in item 5041, and ‘‘Revocation of Probation’’ for ‘‘Revocation of parole or probation’’ in item 5042. 1974—Pub. L. 93–415, title V, § 513, Sept. 7, 1974, 88 Stat. 1138, substituted ‘‘Delinquency proceedings in dis- trict courts; transfer for criminal prosecution.’’ for ‘‘Proceeding against juvenile delinquent.’’ in item 5032; ‘‘Custody prior to appearance before magistrate.’’ for ‘‘Jurisdiction; written consent; jury trial precluded.’’ in item 5033; ‘‘Duties of magistrate.’’ for ‘‘Probation; commitment to custody of Attorney General; support.’’ in item 5034; ‘‘Detention prior to disposition.’’ for ‘‘Ar- rest, detention and bail.’’ in item 5035; ‘‘Speedy trial.’’ for ‘‘Contracts for support; payment.’’ in item 5036; ‘‘Dispositional hearing.’’ for ‘‘Parole.’’ in item 5037; and added items 5038 to 5042. Statutory Notes and Related Subsidiaries CHANGE OF NAME Words ‘‘magistrate judge’’ substituted for ‘‘mag- istrate’’ in items 5033 and 5034 pursuant to section 321 of Pub. L. 101–650, set out as a note under section 631 of Title 28, Judiciary and Judicial Procedure. REPEALS Pub. L. 93–415, title V, § 513, Sept. 7, 1974, 88 Stat. 1138, cited as a credit in an amendment to this analysis, was repealed by Pub. L. 115–385, title III, § 307, Dec. 21, 2018, 132 Stat. 5152. § 5031. Definitions For the purposes of this chapter, a ‘‘juvenile’’ is a person who has not attained his eighteenth birthday, or for the purpose of proceedings and disposition under this chapter for an alleged act of juvenile delinquency, a person who has not attained his twenty-first birthday, and ‘‘juvenile delinquency’’ is the violation of a law of the United States committed by a person prior to his eighteenth birthday which would have been a crime if committed by an adult or a violation by such a person of section 922(x). (June 25, 1948, ch. 645, 62 Stat. 857; Pub. L. 93–415, title V, § 501, Sept. 7, 1974, 88 Stat. 1133; Pub. L. 103–322, title XI, § 110201(c)(1), Sept. 13, 1994, 108 Stat. 2012.) HISTORICAL AND REVISION NOTES Based on title 18, U.S.C., 1940 ed., § 921 (June 16, 1938, ch. 486, § 1, 52 Stat. 764). The phrase ‘‘who has not attained his eighteenth birthday’’ was substituted for ‘‘seventeen years of age or under’’ as more clearly reflecting congressional in- tent and administrative construction. The necessity of a definite fixing of the age of the juvenile was empha- sized by Hon. Arthur J. Tuttle, United States district judge, Detroit, Mich., in a letter to the Committee on Revision of the Laws dated June 24, 1944. Words ‘‘an of- fense against the’’ was changed to ‘‘the violation of a’’ without change of substance. Minor change was made in translation of section ref- erences to ‘‘this chapter’’. Editorial Notes AMENDMENTS 1994—Pub. L. 103–322 inserted before period at end ‘‘or a violation by such a person of section 922(x)’’. 1974—Pub. L. 93–415 amended section generally, in- serting ‘‘or for the purpose of proceedings and disposi- tion under this chapter for an alleged act of juvenile delinquency, a person who has not attained his twenty- first birthday’’ after ‘‘eighteenth birthday,’’ and sub- stituting ‘‘committed by a person prior to his eight- eenth birthday which would have been a crime if com- mitted by an adult’’, for ‘‘committed by a juvenile and not punishable by death or life imprisonment.’’ Statutory Notes and Related Subsidiaries REPEALS Pub. L. 93–415, title V, § 501, Sept. 7, 1974, 88 Stat. 1133, cited as a credit to this section, was repealed by Pub. L. 115–385, title III, § 307, Dec. 21, 2018, 132 Stat. 5152. § 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 impris- onment does not exceed six months, shall not be proceeded against in any court of the United States unless the Attorney General, after inves- tigation, 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 juris- diction 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 of- fense charged is a crime of violence that is a fel- ony or an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), or sec- tion 1002(a), 1003, 1005, 1009, or 1010(b)(1), (2), or (3) of the Controlled Substances Import and Ex- port 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 Fed- eral interest in the case or the offense to war- rant the exercise of Federal jurisdiction. If the Attorney General does not so certify, such juvenile shall be surrendered to the appro- priate legal authorities of such State. For pur- poses of this section, the term ‘‘State’’ includes a State of the United States, the District of Co- lumbia, and any commonwealth, territory, or possession of the United States. If an alleged juvenile delinquent is not surren- dered 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 con- vened at any time and place within the district, Page 948 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 5032 in chambers or otherwise. The Attorney General shall proceed by information or as authorized under section 3401(g) of this title, and no crimi- nal prosecution shall be instituted for the al- leged act of juvenile delinquency except as pro- vided below. A juvenile who is alleged to have committed an act of juvenile delinquency and who is not surrendered to State authorities shall be pro- ceeded 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 fif- teenth 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 Con- trolled 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 mo- tion 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 appli- cation 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 sub- stituted 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 govern- ment 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 elect- ed that the preceding sentence have effect over land and persons subject to its criminal jurisdic- tion. However, a juvenile who is alleged to have committed an act after his sixteenth birthday which if committed by an adult would be a fel- ony offense that has as an element thereof the use, attempted use, or threatened use of phys- ical 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 cir- cumstance giving rise to Federal jurisdiction had existed, shall be transferred to the appro- priate district court of the United States for criminal prosecution. Evidence of the following factors shall be con- sidered, and findings with regard to each factor shall be made in the record, in assessing wheth- er 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 devel- opment and psychological maturity; the nature of past treatment efforts and the juvenile’s re- sponse to such efforts; the availability of pro- grams designed to treat the juvenile’s behav- ioral 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 dis- tribution of controlled substances or firearms. Such a factor, if found to exist, shall weigh in favor of a transfer to adult status, but the ab- sence 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 evi- dence has begun to be taken with respect to a crime or an alleged act of juvenile delinquency subsequent criminal prosecution or juvenile pro- ceedings based upon such alleged act of delin- quency shall be barred. Statements made by a juvenile prior to or dur- ing a transfer hearing under this section shall not be admissible at subsequent criminal pros- ecutions. Whenever a juvenile transferred to district court under this section is not convicted of the crime upon which the transfer was based or an- other crime which would have warranted trans- fer had the juvenile been initially charged with that crime, further proceedings concerning the juvenile shall be conducted pursuant to the pro- visions 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 juve- nile 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 un- available 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, § 502, Sept. 7, 1974, 88 Stat. 1134; Pub. L. 98–473, title II, § 1201, Oct. 12, 1984, 98 Stat. 2149; Pub. L. 100–690, title VI, § 6467(a), Nov. 18, 1988, 102 Stat. 4375; Pub. L. 101–647, title XII, § 1205(n), title XXXV, § 3599G, Nov. 29, 1990, 104 Stat. 4831, 4932; Pub. L. 103–322, title XI, § 110201(c)(2), title XIV, §§ 140001, 140002, title XV, § 150002, Sept. 13, 1994, 108 Stat. 2012, 2031, 2035; Pub. L. 104–294, title VI, § 601(c)(1), (g)(1), Oct. 11, 1996, 110 Stat. 3499, 3500.) Page 949 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 5033 HISTORICAL AND REVISION NOTES Based on title 18, U.S.C., 1940 ed., § 922 (June 16, 1938, ch. 486, § 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. Editorial Notes 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 au- thorized under section 3401(g) of this title’’ after ‘‘shall proceed by information’’. 1994—Pub. L. 103–322, § 150002(1), substituted ‘‘924(b), (g), or (h)’’ for ‘‘922(p)’’ in first par. Pub. L. 103–322, § 110201(c)(2)(A), inserted ‘‘or (x)’’ after ‘‘922(p)’’ in first par. Pub. L. 103–322, § 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’. Not- withstanding sections 1152 and 1153, no person subject to the criminal jurisdiction of an Indian tribal govern- ment 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 jurisdic- tion. However’’ for ‘‘; however’’. Pub. L. 103–322, §§ 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, § 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 or- ganization, 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, § 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 pro- ceedings 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 Co- lumbia’’ after ‘‘to the authorities of a State’’ in third par., and substituted ‘‘offenses set forth in this para- graph’’ for ‘‘offenses set forth in this subsection’’ in fourth par. 1988—Pub. L. 100–690, § 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, § 6467(a)(2), substituted ‘‘section 401 of the Controlled Substances Act (21 U.S.C. 841), or sec- tion 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 Sub- stances 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, § 1201(a), amended first par. gen- erally, inserting ‘‘, other than a violation of law com- mitted within the special maritime and territorial ju- risdiction 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)’’ be- fore ‘‘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 sec- tion 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, § 1201(b)(1), which directed the amend- ment 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 impris- onment 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, § 1201(b)(2), substituted ‘‘fifteen’’ for ‘‘sixteen’’ and ‘‘fifteenth’’ for ‘‘sixteenth’’ in fourth par. Pub. L. 98–473, § 1201(b)(3), inserted provision at end of fourth par., relating to transfer of a juvenile who is al- leged to have committed certain acts after his six- teenth birthday to the appropriate district court of the United States for criminal prosecution. Pub. L. 98–473, § 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 de- linquency for the record. 1974—Pub. L. 93–415 amended section generally, sub- stituting ‘‘Delinquency proceedings in district courts; transfer for criminal prosecution’’, for ‘‘Proceedings against juvenile delinquent’’ in section catchline, in- serting provisions relating to certification to, and pro- cedures in, district courts, transfer upon motion by At- torney General with respect to a juvenile sixteen years and older, factors considered in transfer, notice of transfer, barring of subsequent criminal or juvenile de- linquency proceedings upon entering plea of guilty or upon taking of evidence, and admissibility of state- ments by a juvenile in subsequent criminal prosecu- tion, and substituting provision relating to consent upon advice of counsel for treatment as an adult, for provision requiring consent for treatment as a juvenile. Statutory Notes and Related Subsidiaries REPEALS Pub. L. 93–415, title V, § 502, Sept. 7, 1974, 88 Stat. 1134, cited as a credit to this section, was repealed by Pub. L. 115–385, title III, § 307, Dec. 21, 2018, 132 Stat. 5152. § 5033. Custody prior to appearance before mag- istrate judge Whenever a juvenile is taken into custody for an alleged act of juvenile delinquency, the ar- resting officer shall immediately advise such ju- venile of his legal rights, in language com- prehensive to a juvenile, and shall immediately notify the Attorney General and the juvenile’s parents, guardian, or custodian of such custody. The arresting officer shall also notify the par- ents, guardian, or custodian of the rights of the juvenile and of the nature of the alleged offense. The juvenile shall be taken before a mag- istrate judge forthwith. In no event shall the ju- venile be detained for longer than a reasonable period of time before being brought before a magistrate judge.