Under Virginia law there are times when Commonwealth Attorneys (prosecutors) can elect to have a child charged with a criminal offense tried “as an adult.” When a minor is in that situation, the stakes are high, not just for their liberty but for their future. Keep reading for more from our trusted Virginia criminal defense attorneys, then call (855) 541-4867 to get started on a strong defense.
What’s at stake when juveniles are tried as adults in Virginia?
It is important to note that the Juvenile Justice system is no joke. A child’s criminal record does not simply disappear once they turn 18. In Virginia, if a child is convicted of a felony, that felony stays on their record permanently with no procedure for expungement. Such felony convictions carry countless collateral consequences which can limit education, employment, and living opportunities for juvenile felons as they get older.
How are juveniles tried as adults?
If a child is tried as an adult, their case goes up before the Circuit Court rather than your local Juvenile & Domestic Relations (JDR) District Court. If convicted of an offense as an adult, a juvenile can face the same sentencing options as an adult would. Many charges carry the possibility of years or decades of prison time. For certain offenses, a child can even receive a life sentence so long as the opportunity to qualify for parole remains available to them.
14-year threshold
There are two procedures by which a child can be tried as an adult, and both require a hearing in a JDR court before they can be sent to Circuit Court. Under Virginia code §16.1-269.1, if a juvenile is 14 years or older at the time of the alleged offense, the Commonwealth can make a motion for a transfer hearing to try the child as an adult.
A transfer hearing requires the court to resolve two main issues. One is whether there is probable cause to believe that the child committed the offense charged. The court considers this issue as they might hear a preliminary hearing.
The second issue is whether a transfer is appropriate. For this second issue, the court may consider the juvenile’s competency, age, the seriousness of the offense(s), the child’s criminal history, the appropriateness of available services, and sentencing options in the JDR court, even the child’s school records, among various factors.
16-year threshold
The second procedure under Virginia code §16.1-269.1 requires the child to be 16 years of age or older and charged with a listed felony offense provided in the code. Under this second procedure, the JDR court would hold a preliminary hearing. If the Commonwealth Attorney proved probable cause exists to believe the child committed the offense, the case would proceed to Circuit Court for trial. Before this preliminary hearing, the Commonwealth Attorney must file notice that they intend to pursue the case under this procedure and make a written request to the local court services unit (CSU) to prepare a report on whether the CSU recommends the child be tried as an adult.
Once they receive the report from the CSU if the Commonwealth Attorney still intends to try the child as an adult, they must file a second written notice that they intend to try the child as an adult under this procedure.
Has your child been arrested or is under investigation? Our Virginia juvenile defense lawyers are ready to help.
Some Commonwealth Attorneys utilize the threat of trying a juvenile as an adult to scare a child into taking a plea deal. Other times the Commonwealth Attorney wants the juvenile to suffer adult consequences for the crime(s) alleged. Either way, the child must be defended by an attorney certified by the Virginia Indigent Defense Commission who has a wealth of juvenile defense experience and will zealously fight for the child, their liberty, and their future.
Ryan Moran-Asalone
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- Virginia juvenile law: When and how are children tried as adults? - September 28, 2023
