Juvenile Arrests in Texas: When Kids Are Charged With Adult Crimes

Here in Texas, there’s lots of talk about what is the right age for prosecution as an adult and not as a juvenile.  Is Texas wrong to prosecute seventeen year olds as adults?  Big hint here: the United States Supreme Court has ruled that in the United States of America, you become a legal adult at age eighteen.

Texas Juveniles and the Proposed “Raise the Age” Law

Down in Austin, legislators are arguing this issue.  When should you face trial as an adult?  There’s a 2017 legislative proposal to boost the age of prosecution as an adult to 18 years old, which would stop prosecutors filing adult crimes against 17 year old kids.  It’s being called the “raise the age law.”

You can read lots more about the proposed new law in an article written by Phillip Jankowski in the Austin American Statesman entitled, “Lawmaker Seeks To End Texas Prosecution Of 17-Year-Olds As Adults,” published on February 10, 2017.  Grits for Breakfast has a nice post about this, too.

Cost to Dallas County:  Big Money

Will this proposal succeed?  Here’s a clue: it would save Dallas County around $80,000 a week if the law were passed.  That’s right; around $320,000 a month.

That’s because any 17 year old who is busted on an adult charge cannot be placed with the older adults who have also been arrested and are behind bars in the county jail.  Dallas County has to separate the 17 year old who is arrested on an adult charge.  That means keeping the two groups apart at all times, like during showers.  Those logistics cost money.

See, “How to Keep Kids Out of Adult Jails and Prisons,” by Elizabeth A. Henneke, J.D., Policy Attorney for the Texas Criminal Justice Coalition.

Juveniles Tried as Adults in the Federal System

Meanwhile, what happens over in the federal system?  Juveniles who are arrested by federal law enforcement are prosecutions that are overseen by staff attorneys with the Criminal Division of the Department of Justice’s Organized Crime and Gang Section.  See, Section 9-8.001 of the United States Attorneys’ Manual (“USAM”).

The prosecutor will make the call on whether or not to proceed within the juvenile system or to move the federal court to transfer the arrested teenager for adult prosecution.  USAM 9-8.130, 9-8.230.

1.  Certification

After they are arrested, juvies have to be certified in the federal system to be tried as an adult (unless they are facing a maximum of less than 6 months behind bars if convicted).   Pursuant to 18 U.S.C. § 5032, the Attorney General has to certify to the federal court judge that either:

(1) the juvenile court or other appropriate state court (a) does not have jurisdiction or (b) refuses to assume jurisdiction over the juvenile with respect to the alleged act of juvenile delinquency; or

(2) the state does not have available programs and services adequate for the needs of juveniles; or

(3) the offense charged is (a) a crime of violence or (b) an offense described in 18 U.S.C. §§ 922(x), 924(b),(g), or (h), or 21 U.S.C. §§ 841, 952(a), 953, 955, 959, or 960(b)(1), (2), or (3) and there is a substantial federal interest that justifies the exercise of federal jurisdiction.

The Attorney General’s Office will consult with the Dallas County (or Tarrant County) District Attorney’s Office as necessary in the certification process.  That’s because Texas currently allows seventeen year olds to be prosecuted as adults in the state system.  See, USAM 9-8.110.

What does Certification Mean?

The certification means that the juvenile will be prosecuted within the federal system, not the state courts.  The certification must be done by the Attorney General for the district where the crime was committed or the district where the criminal complaint was filed.

Here in North Texas, this means that either the Northern District or the Eastern District offices of the Attorney General will make the decision on certification of a juvenile.  And if they decide not to certify, they will also have to make the call on whether or not to send that juvie over to Texas for state criminal prosecution.  See, USAM 9-8.120.

Repeat Offenders, 16+ Years Old

Sometimes, young men and women are arrested more than once while they are still very young.  They may even have one or more convictions on their records, even though they are not yet of legal majority.

These “repeat offenders” may be treated differently in the federal system.  If they are at least 16 years old, and they are being charged with felonies for which they have been previously adjudicated that involve (1) violence or the potential for violence; (2) certain weapons offenses; (3) some kinds of drug crimes, or (4) a crime that was particularly dangerous, then the federal prosecutors may move for the repeat offender to be mandatorily tried as an adult.  18 U.S.C. §5032.

2.  Juvenile Request for Trial as an Adult

There is a federal statute that allows a juvenile defendant to request that he be tried as an adult.  Under 18 U.S.C. §5032, the juvie can file a motion with the federal judge requesting that the case against him proceed as an adult prosecution.

The juvenile defendant must make his request upon the advice of defense counsel.  His request must be written and filed with the federal court clerk.

Factors to Be Considered When Juvie Wants to Be Tried as an Adult

The law specifies what the federal court judge must consider when deciding upon this request by the juvenile.  The judge must rule “in the interest of justice.”  18 U.S.C. §5032.

Factors include:

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 such efforts; and
6. the availability of programs designed to treat the juvenile’s behavioral problems.

The law also explains that when the judge is considering the “nature of the alleged offense,” he or she is to 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.

If the judge finds that this factor is present, then the statute states it “shall weigh in favor of a transfer to adult status.”  However, if the factor is not found, then that “shall not preclude such a transfer.”

Considerations in Trying a Teenager as an Adult for an Adult Crime

In Texas, there are two jurisdictions facing a young man or woman who is arrested by law enforcement.  They are the state system of criminal laws and the federal criminal code. Within these two jurisdictions, federal and state, there is another crossroads:  the juvenile system or the adult system.

Juvenile courts and a separate criminal justice system for children isn’t a new concept.  It’s been around for hundreds of years, distinguishing the reality that kids aren’t fully grown – and they oftentimes cannot appreciate their choices and consequences in the same way that adults can.  They are literally still growing, physically, as well as maturing psychologically.

If a juvenile is not marked to be tried as an adult, then he is processed in the juvenile system.  Here, juvie courts offer alternatives to the child that are not available to the adult.  Things like the “Brooklyn Plan” of pre-trial diversion under the federal system.  See, USAM 9-8.190, 9-22.000.

Defense Arguments

Prosecutors make the decision on whether or not a teenager gets the chance to move through the juvie system, with a focus on rehabilitation and second chances, or into the adult system and its harsher world and stricter sentences (particularly in the federal system).   They have the discretion on whether or not to go before the judge and try and get the defendant tried as an adult.  See, USAM 9-8.190.

The criminal defense attorney must advocate for the best interests of his teenaged client in this cases.

Arguments can include not only the personal circumstances of the case, but what is in the best interest of our society as a whole and the practicalities of placing teenagers into the adult system.  (Like the real budgetary cost of doing so here in Dallas County, as discussed above.)

For more, see, “Should Juveniles Be Charged as Adults in the Criminal Justice System?” written by Nicole Scialabba, and published in the American Bar Journal on October 3, 2016.

Also, check out our web resources as well as Michael Lowe’s Case Results and read:

Juvenile Heroin Arrests: When Your Child is Busted for Heroin in Texas;

Sex Offender Registry in Texas: Stigma and Second Chances; and

PRE-ARREST CRIMINAL INVESTIGATIONS.