Monica Welker, Associate Member, University of Cincinnati Law Review
There is a lack of clarity regarding how our most vulnerable citizens—our youth—are tried for criminal acts. Two different juveniles charged with federal crimes could be tried according to two different standards for the same alleged act, depending on where they live. One might be tried in a juvenile court, with a shorter possible sentence, while another might be tried in a criminal court. Consider the following examples:
- Ellen is a sixteen-year-old accused of armed bank robbery. She has always been in trouble, and no one is surprised to hear about her arrest. It is the third time she has been arrested. Her first arrest was for drug possession, when police found her with heroine in her high school bathroom. It resulted in a conviction, mandatory treatment, and community service. Her second arrest was for another alleged armed robbery but the victims, an elderly couple, died in a car crash on the way to the police station to identify her. As a result, she was released.
- Michael is another sixteen-year-old accused of armed bank robbery. He has been in trouble before but mostly as a result of his association with his older brother and his friends who call themselves a “gang.” He has been arrested for armed robbery and vandalism but has always been released and neither of those cases ever resulted in a trial. In each circumstance, he was in the wrong place at the wrong time when his brother’s gang was breaking the law and did not actively participate in the criminal behavior.
In federal court, there is no clear guidance on whether Ellen and Michael’s prior arrests that did not result in convictions should be factored into the decision to transfer their cases from juvenile court to criminal court. This lack of guidance violates the constitutional guarantee of due process and protection from discrimination.
In the United States, juveniles who commit criminal acts are tried in juvenile court unless the court determines that the case should be transferred to a criminal (adult) court. When determining whether to transfer a case, 18 U.S.C. § 5032 lays out six factors for a court to consider They are: (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.”
Since 1998, there has been a circuit split over whether the plain language meaning of “prior delinquency record,” as found in the third factor, should include prior arrests that did not result in convictions. In July of 1998, the Seventh Circuit handed down its decision in United States v. Wilson, which held that prior arrests should be considered when examining the third factor. Five months later, the Eighth Circuit ruled in United States v. Juvenile LWO that a “prior delinquency record cannot plausibly be interpreted to encompass evidence of conduct that has not been . . . admitted to be delinquent or criminal.” The split continues through today.
DUE PROCESS IMPLICATIONS
This unresolved split potentially violates the Fifth Amendment rights of juvenile defendants. In Bolling v. Sharpe, the Supreme Court ruled that “discrimination can be violative of due process.” If the harshness of a juvenile’s sentence can depend on his arrest record instead of his conviction record, he is at a disadvantage when compared to an adult defendant who knows that his sentence will not be colored by arrests that did not result in convictions. Additionally, the lack of a uniform legal standard in federal court can result in juveniles in different circuits being judged by two different standards, another potential due process violation.
CIRCUIT RULING EXPLANATIONS
This circuit split shows that two courts looking to the plain language of the same statute can interpret it differently. The Seventh Circuit in Wilson pointed out that the statute calls for a review of the delinquency record, which includes arrests. It further argued that if Congress had wanted to exclude arrests, Congress would have written the statute to limit the inquiry to the juvenile’s prior convictions, not the entire record. The Eighth Circuit in LWO likewise defended its ruling on the plain language of the statute but also cited In Re Sealed, a D.C. Circuit case from 1990.
In Re Sealed interpreted § 5032, but it focused on the second factor to be considered when deciding to transfer a juvenile to a criminal court: the nature of the offense. At issue was a district judge who considered a conspiracy charge that was dropped by the prosecution prior to the transfer hearing. The court ruled that considering the dropped conspiracy charge was a violation of the juvenile’s due process rights.
When considering a transfer, a judge is required to assume that the juvenile committed the crime which brings him into the court on that day. The reasoning is that if the juvenile is innocent of the accused crime, the criminal trial should be where all evidence of innocence or guilt be weighed. Because the transfer hearing automatically assumes that the juvenile likely committed the crime, the court in Sealed ruled that uncharged criminal acts have no place in the transfer hearing. If the juvenile is innocent of the crime he is charged with, he has an opportunity to clear his name with regard to those charges in the criminal trial. But the juvenile will never have a chance to argue his innocence of crimes which he was arrested for but not ultimately charged with. The D.C. Circuit ruled that if the juvenile’s conspiracy charge was dropped, the judge may not consider the dropped charge when determining the juvenile’s transfer.
Using this understanding, the Eighth Circuit in LWO wrote that considering arrests without convictions under the “delinquency record” factor did not fit within the plain language of the statute. It found that the phrase “extent and nature of the juvenile’s delinquency record” unambiguously did not include prior arrests without convictions. Therefore, the court left the door open to considering arrests without convictions under some of the other factors. § 5032 explicitly requires judges to make findings with regard to each factor. Therefore, a judge could consider previous arrests without convictions when she considers a juvenile’s psychological maturity or the efficacy of past treatment efforts.
POLICY AIMS OF § 5032
Because the courts conflict in their interpretation of the plain language found within the statute, one can look to the policy reasons behind the act. The D.C. Circuit in Sealed explored this avenue as well, pointing out that the purpose of §5032 was to rehabilitate youth, rather than punish them:
The Act is premised on the notion that it is in the best interest of both the juvenile and society that juveniles be insulated from the stigma associated with criminal trials, the publicity, the retributive atmosphere and threat of criminal incarceration.
Thus, the policy aims of the Act is the protection of juveniles from criminal trials. This implies a lax standard for transferring juvenile cases to criminal court.
Considering the due process implications, the plain language of the statute, and the policy aims, the scale tips toward excluding arrests without convictions in the test for transferring cases to criminal court. If two circuits can take reasonable approaches to the plain language interpretation of the statute, and have two different results, then the statute defies the plain language approach. Therefore, the best interpretation is found elsewhere.
The policy aims and the due process considerations are important factors when deciding what to review because the decision often creates a significant impact on a juvenile’s life. The Shield court specifically called for shielding juveniles from the retributive nature of the criminal courts. If a kinder, gentler, more rehabilitative court system is the stated policy aim for juveniles, then reducing their due process rights seems counterproductive.
Returning to the hypotheticals considered at the beginning, barring arrests only would permit Ellen’s drug arrest to be included in the judge’s consideration, but not her previous armed robbery. Under the same standard, Michael would have no delinquent record to examine. Although Ellen may not receive the harsh sentence preferred by some in the community, eliminating the use of arrests keeps Michael from receiving a sentence that is unjustified. To paraphrase Blackstone’s formulation, it is better that one hardened delinquent receive a sentence that is too light, than a juvenile capable of rehabilitation be treated too harshly.
Additionally, previous arrests should not be considered under the other factors a judge weighs when contemplating a transfer to criminal court. Prior arrests aren’t considered during the sentencing phase of an adult’s trial, so they should not affect the sentencing of a juvenile.
Courts should not consider arrests without convictions when deciding whether to transfer a juvenile case to criminal court. The practice violates the due process rights of the juveniles, does not meet the policy aims of § 5032, and there is no agreed plain language view of the phrase “delinquent record” on which the courts can agree. Therefore, if protecting our juveniles from the horrors of the adult penal system is a national goal, siding with the Eighth Circuit and the D.C. Circuit may be the way forward.
 For purposes of simplicity, I will be using the shorter term “conviction” in place of the more technically correct civil/juvenile term “adjudication of delinquency,” as the court cases discussed herein tend to use the criminal court phrases “convicted” or “found guilty.” The Eighth Circuit explicitly made this same decision because, among other reasons, of the variety of nomenclature among the states with regard to juvenile systems. United States v. Juvenile LWO, 160 F. 3d 1179, 1182 n.4 (8th Cir. 1998).
 18 U.S.C. § 5032.
 149 F. 3d 610, 613 (7th Cir. 1998).
 160 F. 3d 1179, 1183 (8th Cir. 1998).
 United States v. Juvenile, 2017 U.S. Dist LEXIS 151370, p. 24 n.13 (E.D.N.Y. Sept. 7, 2017).
 347 U.S. 497, 499 (1954). While Bolling talked about racial discrimination, it was a case about school students, thus indicating that minors also should have due process.
 United States v. One Juvenile Male, 40 F.3d 841, 844 (6th Cir. 1994); 18 U.S.C. § 5032; Fed. R. Evid. 404(b); and United States Attorneys Manual (Criminal Resource Manual) §116 https://www.justice.gov/usam/criminal-resource-manual-116-juvenile-delinquency-prosecution-introduction.
 Randie P. Ullman, Federal Juvenile Waiver Practices: A Contextual Approach to the Consideration to Prior Delinquency Records, 68 Fordham L Rev 1329, 1357-58 (2000).
 Wilson, 149 F.3d at 613.
 LWO, 160 F.3d at 1182-1183.
 In Re Sealed Case, 893 F.2d 363, 368-369 (D.C. Cir. 1990).
 Id. at 365.
 Id. at 369.
 In Re Sealed Case, 893 F.2d 363, 369 (D.C. Cir. 1990).
 Id. at 369-370.
 160 F. 3d at 1183.
 893 F.2d at 367-368.