Exposing the crumbling justification for absolute prosecutorial discretion in youth filing decisions

Can absolute prosecutorial discretion in youth charging decisions—like that allowed under Title 16 in the District of Columbia—continue to withstand legal, scientific, and policy-based scrutiny? The recently-approved Restatement of Children and the Law adds to the weight of authorities casting further doubt on the wisdom of such discretion. Most jurisdictions do not permit prosecutors to charge children in adult court unilaterally, requiring a transfer hearing and constitutional safeguards. Among the few that allow “direct file” transfers, nearly all provide some form of judicial review, generally through reverse waiver provisions. D.C., however, stands alone in giving unelected federal prosecutors at the United States Attorney’s Office unchecked authority to charge 16- and 17-year-olds as adults, without any opportunity for judicial review. This approach is at odds with current research on adolescent brain development and the constitutional protections for youth that have evolved alongside it.

Drawing on the Restatement, this article examines the broader national move away from “direct file” transfer authority, exposing the glaring persistence of outdated practices in D.C. It revisits the failed 2021 legislative reform effort before the D.C. Council to eliminate the U.S. Attorney’s “direct file” authority, and argues that, in the absence of legislative change, legal advocates may need to pursue reform through the courts—particularly given Title 16’s potential vulnerability under the Eighth Amendment’s prohibition on cruel and unusual punishment. Ultimately, the article contends that the Restatement, through its “child wellbeing” framework, offers not only a clear articulation of where transfer laws currently stand and how D.C.’s practice diverges but also suggests where the law might ought to be going and provides materials from which law reform advocates can construct futures legal challenges to laws like Title 16.