Few things are more damning to a child than making the decision to transfer them from a juvenile court to an adult court. Sentencing as an adult can result in longer prison sentences, harsher conditions, and incarceration with adult criminals who exploit them. Our system’s adult institutions do little to rehabilitate juvenile offenders and often lead to further criminal lifestyles.

With the limited number of juveniles in federal jurisdiction, few people understand how federal court retain jurisdiction over a juvenile. Juveniles arrested by federal law enforcement agencies “may be prosecuted and sentenced in the U.S. District Courts and even committed to the Federal Bureaus of Prisons.” The federal agencies that arrest the most juveniles are the Border Patrol, Drug Enforcement Agency, U.S. Marshals Services, and FBI. Following a federal arrest of an individual under the age of twenty-one (21), an investigation is done.

This investigation will determine one of three possibilities for the juvenile: state juvenile court takes jurisdiction, automatic transfer to federal criminal court by statute, or discretionary judicial waiver to federal criminal court. In the third scenario, the decision of whether to waive a juvenile to adult status rests on judicial discretion. Although federal law directs district court judges to consider six factors in making this determination, interpretation of one of these crucial factors has been far from uniform. When determining what constitutes a “prior delinquency record” circuit courts’ have employed various methods of examination resulting in wide variations in the outcomes of waiver hearings. The courts have adopted approaches of allowing all prior unadjudicated arrests, allowing the unadjudicated arrests in under a different factor, or not allowing them in at all.6 The effect this one decision can have is life-altering and is why a uniform and consistent interpretation of the Federal Juvenile Delinquency Act (“FJDA”) discretionary waiver factors is of the upmost importance.

The evidence supports the notion that courts should adopt a narrow reading of this “prior delinquency record” factor to not include prior unadjudicated events and return to the original rehabilitative purpose of the juvenile courts. Not only does this method hinder the risk of any due process violations a juvenile could be exposed to, but it is clear these incidents were not meant to be included by looking at the reading of the Act that outlines the factors and traditional notions.

Before examining the effects of a judicial waiver, it is equally critical to understand the history of the juvenile courts and the still evolving balance between rehabilitation and punishment juvenile courts are striving to achieve. This article next turns to the FJDA and the amendments made to it in response to the due process protections the Court found juveniles were entitled to. This article then analyzes the criteria included in this the FJDA for when a judicial waiver should take place and how the circuits have differently interpreted one of those criteria. This article concludes by addressing why the waiver of juveniles to adult court can be so detrimental and why uniformity is necessary, before finally addressing why courts should in fact not be allowed to take into consideration prior unadjudicated events.