At the 2024 Annual Meeting, Restatement of the Law, Children and the Law Tentative Draft No. 6 (TD No. 6) was approved by ALI membership, subject to the discussion at the meeting and usual editorial prerogative. The below black letter is excerpted from this draft, which contains §§ 13.10-13, Transfer to Criminal Court.
The below text does not incorporate edits made subject to the discussion at the meeting and usual editorial prerogative.
§ 13.10. Transfer to Criminal Court; Determinative Factors and Requirement of Particularized Findings
(a) Unless otherwise provided by statute, a delinquency proceeding involving a youth who was younger than 14 at the time of the alleged offense may not be transferred to a criminal court.
(b) When the prosecution files a motion to transfer a delinquency proceeding to a criminal court, the prosecution bears the burden of:
(1) showing probable cause to believe that the youth committed the charged offense; and
(2) establishing the determinative criteria for transfer under applicable law.
In ruling on the transfer motion, the juvenile court must consider each factor specified in the transfer statute or applicable judicial opinion, make particularized findings on each determinative factor, and explain the decision in sufficient detail to permit meaningful appellate review.
(c) Unless otherwise provided by statute or applicable judicial opinion, the determinative factors in transfer adjudication are:
(1) the risk posed by the youth to public safety based on the charged offense, prior delinquency adjudications and interventions, and an assessment of the likelihood of future offending; and
(2) the youth’s amenability to treatment, services, and other interventions aiming to reduce the likelihood of reoffending that are available in the juvenile system during the period of the delinquency disposition.
(d) Each youth being considered for transfer is entitled to an individualized psychosocial and developmental assessment prepared by a qualified professional and considered by the court in making the transfer decision. This forensic transfer assessment must include assessment of the youth’s risk of reoffending; need for preventive restraint; responsivity to available treatment, services, and interventions; and needs for healthy development. If a youth being considered for transfer is financially unable to retain a qualified expert, the court must appoint, at state expense, a qualified professional with specialized knowledge of adolescent development and delinquency. The rules governing these assessments are specified in § 13.11.
(e) Retribution is not a proper basis for transferring the case to a criminal court.
(f) Unless otherwise provided by statute, a youth may be transferred to criminal court only if the juvenile court judge finds that the youth’s behavior presents a significant risk to public safety that is unlikely to be meaningfully reduced by the treatment, services, and other interventions undertaken during the legally authorized period of the delinquency disposition.
(g) If the juvenile court waives jurisdiction and issues an order transferring the case to the criminal court, the youth has the right to an expedited interlocutory review of the juvenile court’s ruling.
§ 13.11. Youth’s Right to Expert Assessment in Transfer Proceeding
(a) If a youth under consideration for transfer is financially unable to retain a qualified, independent expert to conduct a transfer assessment, the court must appoint a qualified professional with specialized knowledge of adolescent development and delinquency, at state expense, to assess developmental, behavioral, and clinical issues relevant to the statutory criteria governing transfer, including the youth’s risk of reoffending, needs for healthy development, and responsivity to available interventions and services, and to prepare a report for the defense addressing these issues.
(b) Use of the report prepared by the expert and information derived from the evaluation and presentation of testimony by the expert are governed by § 13.12.
§ 13.12. Use of Incriminating Disclosures in Connection with Transfer Proceeding
(a) The privilege against self-incrimination applies in a juvenile transfer proceeding whether it is held in a juvenile court or a criminal court. The privilege is violated by any rule or practice that requires the youth to admit guilt, or acknowledge any inculpatory fact, as a condition of being eligible for juvenile-court jurisdiction.
(b) No statement made by a youth in a transfer proceeding is admissible over the youth’s objection in any subsequent delinquency or criminal adjudication unless it is introduced in direct contradiction of a statement made by the youth in that subsequent proceeding.
(c) No statement made by a youth during a pretrial clinical evaluation conducted in connection with a transfer proceeding, or information derived from such a statement, may be used over the youth’s objection in the transfer proceeding, or in any subsequent delinquency proceeding or criminal adjudication, unless it is introduced in direct contradiction of a statement made by the youth or to rebut claims asserted by the defense in that proceeding.