REFERENCE TITLE: infancy; penalty recommendation; juvenile offenders State of Arizona House of Representatives Fifty-seventh Legislature First Regular Session 2025 HB 2636 Introduced by Representatives Kolodin: Fink, Hendrix, Keshel AN ACT amending section 8-327, Arizona Revised Statutes; amending title 13, chapter 2, Arizona Revised Statutes, by adding section 13-207; amending section 13-501, Arizona Revised Statutes; amending title 13, chapter 7, Arizona Revised Statutes, by adding section 13-721; relating to juvenile offenders. (TEXT OF BILL BEGINS ON NEXT PAGE)
REFERENCE TITLE: infancy; penalty recommendation; juvenile offenders
State of Arizona House of Representatives Fifty-seventh Legislature First Regular Session 2025
HB 2636
Introduced by Representatives Kolodin: Fink, Hendrix, Keshel
REFERENCE TITLE: infancy; penalty recommendation; juvenile offenders
State of Arizona
House of Representatives
Fifty-seventh Legislature
First Regular Session
2025
HB 2636
Introduced by
Representatives Kolodin: Fink, Hendrix, Keshel
AN ACT
amending section 8-327, Arizona Revised Statutes; amending title 13, chapter 2, Arizona Revised Statutes, by adding section 13-207; amending section 13-501, Arizona Revised Statutes; amending title 13, chapter 7, Arizona Revised Statutes, by adding section 13-721; relating to juvenile offenders.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona: Section 1. Section 8-327, Arizona Revised Statutes, is amended to read: START_STATUTE8-327. Transfer hearing A. The state may request an order of the juvenile court transferring jurisdiction of the criminal prosecution of any felony filed in the juvenile court to the criminal division of the superior court. B. On request of the state that a juvenile be transferred, the court shall hold a transfer hearing before the adjudication hearing. C. If the judge finds by a preponderance of the evidence that probable cause exists to believe that the offense was committed, that the juvenile committed the offense and that the public safety would best be served by the transfer of the juvenile for criminal prosecution, the judge shall order that the juvenile be transferred for criminal prosecution to the appropriate court having jurisdiction of the offense. The judge shall state on the record the reasons for transferring or not transferring the juvenile for criminal prosecution. D. The court shall consider the following factors in determining if the public safety would be served by the transfer of a juvenile for criminal prosecution: 1. The seriousness of the offense involved. 2. The record and previous history of the juvenile, including previous contacts with the courts and law enforcement, previous periods of any court ordered probation and the results of that probation. 3. Any previous commitments of the juvenile to juvenile residential placements and secure institutions. 4. If the juvenile was previously committed to the department of juvenile corrections for a felony offense. 5. If the juvenile committed another felony offense while the juvenile was a ward of the department of juvenile corrections. 6. If the juvenile committed the alleged offense while participating in, assisting, promoting or furthering the interests of a criminal street gang, a criminal syndicate or a racketeering enterprise. 7. The views of the victim of the offense. 8. If the degree of the juvenile's participation in the offense was relatively minor but not so minor as to constitute a defense to prosecution. 9. The juvenile's mental and emotional condition. 10. The likelihood of the juvenile's reasonable rehabilitation through the use of services and facilities that are currently available to the juvenile court. E. At the conclusion of the transfer hearing, the court shall make a written determination whether the juvenile should be transferred to the criminal division of the superior court for criminal prosecution. The court shall not defer the decision as to the transfer. If the court determines that the juvenile should not be transferred to the criminal division of the superior court, the court shall set an adjudication hearing. F. Jurisdiction is conferred onto the juvenile court pursuant to section 13-207, subsection D for a period of time that the juvenile court determines necessary to ensure the rehabilitation of the person if the disposition does not exceed the maximum sentence that would be authorized for criminal punishment under Title 13. END_STATUTE Sec. 2. Title 13, chapter 2, Arizona Revised Statutes, is amended by adding section 13-207, to read: START_STATUTE13-207. Infancy; burden of proof A. A person who commits an offense when the person is thirteen years of age or younger may request a judicial finding that the person's infancy caused a lack of maturity at the time of the offense and requires the person to be excused from criminal responsibility as an adult. B. The person who requests a judicial finding pursuant to subsection A of this section must prove the infancy caused a lack of maturity at the time of the offense by clear and convincing evidence. C. THE judicial finding OF INFANCY does NOT apply to ANY OFFENSE listed in SECTION 13-501, subsection A. d. On a finding of infancy, the juvenile court has jurisdiction over the person who is not subject to criminal responsibility under this section. END_STATUTE Sec. 3. Section 13-501, Arizona Revised Statutes, is amended to read: START_STATUTE13-501. Persons under eighteen years of age; felony charging; definitions A. The county attorney shall bring a criminal prosecution against a juvenile in the same manner as an adult if the juvenile is fifteen, sixteen or seventeen years of age at the time the alleged offense is committed and the juvenile is accused of any of the following offenses: 1. First degree murder in violation of section 13-1105. 2. Second degree murder in violation of section 13-1104. 3. Forcible sexual assault in violation of section 13-1406. 4. Armed robbery in violation of section 13-1904. 5. Any other violent felony offense. 6. Any felony offense committed by a chronic felony offender. 7. Any offense that is properly joined to an offense listed in this subsection. B. Except as provided in subsection A of this section, the county attorney may bring a criminal prosecution against a juvenile in the same manner as an adult if the juvenile is at least fourteen years of age at the time the alleged offense is committed and the juvenile is accused of any of the following offenses: 1. A class 1 felony. 2. A class 2 felony. 3. A class 3 felony in violation of any offense in chapters 10 through 17 or chapter 19 or 23 of this title. 4. A class 3, 4, 5 or 6 felony involving a dangerous offense. 5. Any felony offense committed by a chronic felony offender. 6. Any offense that is properly joined to an offense listed in this subsection. C. A criminal prosecution shall be brought against a juvenile in the same manner as an adult if the juvenile has been accused of a criminal offense and has a historical prior felony conviction. D. At the time the county attorney files a complaint or indictment the county attorney shall file a notice stating that the juvenile is a chronic felony offender. Subject to subsection E of this section, the notice shall establish and confer jurisdiction over the juvenile as a chronic felony offender. E. On motion of the juvenile the court shall hold a hearing after arraignment and before trial to determine if a juvenile is a chronic felony offender. At the hearing the state shall prove by a preponderance of the evidence that the juvenile is a chronic felony offender. If the court does not find that the juvenile is a chronic felony offender, the court shall transfer the juvenile to the juvenile court pursuant to section 8-302. If the court finds that the juvenile is a chronic felony offender or if the juvenile does not file a motion to determine if the juvenile is a chronic felony offender, the criminal prosecution shall continue. F. Notwithstanding subsections A and B of this section, the county attorney shall not bring an action pursuant to title 13 or title 8 against a juvenile if the juvenile is seven years of age or younger at the time the alleged offense is committed. F. g. Except as provided in section 13-921, a person who is charged pursuant to this section shall be sentenced in the criminal court in the same manner as an adult for any offense for which the person is convicted. G. h. Unless otherwise provided by law, nothing in this section shall be construed as to does not confer jurisdiction in the juvenile court over any person who is eighteen years of age or older. H. i. For the purposes of this section: 1. "Accused" means a juvenile against whom a complaint, information or indictment is filed. 2. "Chronic felony offender" means a juvenile who has had two prior and separate adjudications and dispositions for conduct that would constitute a historical prior felony conviction if the juvenile had been tried as an adult. 3. "Forcible sexual assault" means sexual assault pursuant to section 13-1406 that is committed without consent as defined in section 13-1401, subsection A, paragraph 7, subdivision (a). 4. "Other violent felony offense" means: (a) Aggravated assault pursuant to section 13-1204, subsection A, paragraph 1. (b) Aggravated assault pursuant to section 13-1204, subsection A, paragraph 2 involving the use of a deadly weapon. (c) Drive by shooting pursuant to section 13-1209. (d) Discharging a firearm at a structure pursuant to section 13-1211. END_STATUTE Sec. 4. Title 13, chapter 7, Arizona Revised Statutes, is amended by adding section 13-721, to read: START_STATUTE13-721. Special penalty recommendation; juvenile offenders; definition A. IF A person IS sentenced for an offense that was committed before the person attains eighteen years of age, the person MAY REQUEST A SPECIAL PENALTY RECOMMENDATION FROM THE TRIER OF FACT IMMEDIATELY AFTER THE TRIal. B. if a person requests a SPECIAL PENALTY RECOMMENDATION, the trier of fact may determine WHETHER a deviation from the applicable sentence, sentencing range or required probation is appropriate. C. for the purpose of making the determination pursuant to subsection b of this section, the trier of fact shall determine and the court shall consider evidence of the person's maturity based on the person's age and attendant characteristics. D. IF THE TRIER OF FACT DETERMINES THAT THE applicable sentence or sentencing range should be reduced PURSUANT TO SUBSECTION C OF THIS SECTION, THE TRIER OF FACT SHALL MAKE A WRITTEN RECOMMENDATION OF the reduced SENTENCE or sentencing range AND INDICATE WHETHER PROBATION IS APPROPRIATE. IF THE TRIER OF FACT is the jury and a majority of the jury CANNOT AGREE ON A RECOMMENDATION, THE applicable sentence or sentencing range shall remain the same. E. a special penalty recommendation pursuant to this section is not binding on the court at sentencing but does authorize a court to impose a reduced sentence if the court finds that the sentence is consistent with the special penalty recommendation and serves the interests of justice. F. For the purposes of this section, "trier of fact" means a jury, unless the defendant and the state waive a jury in which case the trier of fact means the court. only a majority of the jury needs to agree on the special penalty recommendation. END_STATUTE Sec. 5. Legislative findings A. Before the American Revolution, English common law recognized distinctions between minors and adults when it came to the issue of criminal punishment. Children six years of age and under were considered to lack the capacity to form criminal intent in all circumstances and those thirteen and under were entitled to a rebuttable presumption that they lacked the capacity to form criminal intent. William Blackstone, Commentaries on the Laws of England, Ch. 17. With respect to juveniles with the capacity to form criminal intent, courts retained discretion to take age into account when deciding on the appropriate punishment. B. In State v. Agundez-Martinez, 256 Ariz. 445 (2024), the Arizona supreme court interpreted Arizona laws to determine whether a defendant could be prosecuted as an adult for crimes he committed when he was between ten and twelve years of age. The Court "urge[d] the legislature to act so the courts are not forced to determine these directives on a case-by-case basis" and noted the possibility of "constitutional and prosecutorial uncertainty." 540 P.3d at 1212-13.
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 8-327, Arizona Revised Statutes, is amended to read:
START_STATUTE8-327. Transfer hearing
A. The state may request an order of the juvenile court transferring jurisdiction of the criminal prosecution of any felony filed in the juvenile court to the criminal division of the superior court.
B. On request of the state that a juvenile be transferred, the court shall hold a transfer hearing before the adjudication hearing.
C. If the judge finds by a preponderance of the evidence that probable cause exists to believe that the offense was committed, that the juvenile committed the offense and that the public safety would best be served by the transfer of the juvenile for criminal prosecution, the judge shall order that the juvenile be transferred for criminal prosecution to the appropriate court having jurisdiction of the offense. The judge shall state on the record the reasons for transferring or not transferring the juvenile for criminal prosecution.
D. The court shall consider the following factors in determining if the public safety would be served by the transfer of a juvenile for criminal prosecution:
1. The seriousness of the offense involved.
2. The record and previous history of the juvenile, including previous contacts with the courts and law enforcement, previous periods of any court ordered probation and the results of that probation.
3. Any previous commitments of the juvenile to juvenile residential placements and secure institutions.
4. If the juvenile was previously committed to the department of juvenile corrections for a felony offense.
5. If the juvenile committed another felony offense while the juvenile was a ward of the department of juvenile corrections.
6. If the juvenile committed the alleged offense while participating in, assisting, promoting or furthering the interests of a criminal street gang, a criminal syndicate or a racketeering enterprise.
7. The views of the victim of the offense.
8. If the degree of the juvenile's participation in the offense was relatively minor but not so minor as to constitute a defense to prosecution.
9. The juvenile's mental and emotional condition.
10. The likelihood of the juvenile's reasonable rehabilitation through the use of services and facilities that are currently available to the juvenile court.
E. At the conclusion of the transfer hearing, the court shall make a written determination whether the juvenile should be transferred to the criminal division of the superior court for criminal prosecution. The court shall not defer the decision as to the transfer. If the court determines that the juvenile should not be transferred to the criminal division of the superior court, the court shall set an adjudication hearing.
F. Jurisdiction is conferred onto the juvenile court pursuant to section 13-207, subsection D for a period of time that the juvenile court determines necessary to ensure the rehabilitation of the person if the disposition does not exceed the maximum sentence that would be authorized for criminal punishment under Title 13. END_STATUTE
Sec. 2. Title 13, chapter 2, Arizona Revised Statutes, is amended by adding section 13-207, to read:
START_STATUTE13-207. Infancy; burden of proof
A. A person who commits an offense when the person is thirteen years of age or younger may request a judicial finding that the person's infancy caused a lack of maturity at the time of the offense and requires the person to be excused from criminal responsibility as an adult.
B. The person who requests a judicial finding pursuant to subsection A of this section must prove the infancy caused a lack of maturity at the time of the offense by clear and convincing evidence.
C. THE judicial finding OF INFANCY does NOT apply to ANY OFFENSE listed in SECTION 13-501, subsection A.
d. On a finding of infancy, the juvenile court has jurisdiction over the person who is not subject to criminal responsibility under this section. END_STATUTE
Sec. 3. Section 13-501, Arizona Revised Statutes, is amended to read:
START_STATUTE13-501. Persons under eighteen years of age; felony charging; definitions
A. The county attorney shall bring a criminal prosecution against a juvenile in the same manner as an adult if the juvenile is fifteen, sixteen or seventeen years of age at the time the alleged offense is committed and the juvenile is accused of any of the following offenses:
1. First degree murder in violation of section 13-1105.
2. Second degree murder in violation of section 13-1104.
3. Forcible sexual assault in violation of section 13-1406.
4. Armed robbery in violation of section 13-1904.
5. Any other violent felony offense.
6. Any felony offense committed by a chronic felony offender.
7. Any offense that is properly joined to an offense listed in this subsection.
B. Except as provided in subsection A of this section, the county attorney may bring a criminal prosecution against a juvenile in the same manner as an adult if the juvenile is at least fourteen years of age at the time the alleged offense is committed and the juvenile is accused of any of the following offenses:
1. A class 1 felony.
2. A class 2 felony.
3. A class 3 felony in violation of any offense in chapters 10 through 17 or chapter 19 or 23 of this title.
4. A class 3, 4, 5 or 6 felony involving a dangerous offense.
5. Any felony offense committed by a chronic felony offender.
6. Any offense that is properly joined to an offense listed in this subsection.
C. A criminal prosecution shall be brought against a juvenile in the same manner as an adult if the juvenile has been accused of a criminal offense and has a historical prior felony conviction.
D. At the time the county attorney files a complaint or indictment the county attorney shall file a notice stating that the juvenile is a chronic felony offender. Subject to subsection E of this section, the notice shall establish and confer jurisdiction over the juvenile as a chronic felony offender.
E. On motion of the juvenile the court shall hold a hearing after arraignment and before trial to determine if a juvenile is a chronic felony offender. At the hearing the state shall prove by a preponderance of the evidence that the juvenile is a chronic felony offender. If the court does not find that the juvenile is a chronic felony offender, the court shall transfer the juvenile to the juvenile court pursuant to section 8-302. If the court finds that the juvenile is a chronic felony offender or if the juvenile does not file a motion to determine if the juvenile is a chronic felony offender, the criminal prosecution shall continue.
F. Notwithstanding subsections A and B of this section, the county attorney shall not bring an action pursuant to title 13 or title 8 against a juvenile if the juvenile is seven years of age or younger at the time the alleged offense is committed.
F. g. Except as provided in section 13-921, a person who is charged pursuant to this section shall be sentenced in the criminal court in the same manner as an adult for any offense for which the person is convicted.
G. h. Unless otherwise provided by law, nothing in this section shall be construed as to does not confer jurisdiction in the juvenile court over any person who is eighteen years of age or older.
H. i. For the purposes of this section:
1. "Accused" means a juvenile against whom a complaint, information or indictment is filed.
2. "Chronic felony offender" means a juvenile who has had two prior and separate adjudications and dispositions for conduct that would constitute a historical prior felony conviction if the juvenile had been tried as an adult.
3. "Forcible sexual assault" means sexual assault pursuant to section 13-1406 that is committed without consent as defined in section 13-1401, subsection A, paragraph 7, subdivision (a).
4. "Other violent felony offense" means:
(a) Aggravated assault pursuant to section 13-1204, subsection A, paragraph 1.
(b) Aggravated assault pursuant to section 13-1204, subsection A, paragraph 2 involving the use of a deadly weapon.
(c) Drive by shooting pursuant to section 13-1209.
(d) Discharging a firearm at a structure pursuant to section 13-1211. END_STATUTE
Sec. 4. Title 13, chapter 7, Arizona Revised Statutes, is amended by adding section 13-721, to read:
START_STATUTE13-721. Special penalty recommendation; juvenile offenders; definition
A. IF A person IS sentenced for an offense that was committed before the person attains eighteen years of age, the person MAY REQUEST A SPECIAL PENALTY RECOMMENDATION FROM THE TRIER OF FACT IMMEDIATELY AFTER THE TRIal.
B. if a person requests a SPECIAL PENALTY RECOMMENDATION, the trier of fact may determine WHETHER a deviation from the applicable sentence, sentencing range or required probation is appropriate.
C. for the purpose of making the determination pursuant to subsection b of this section, the trier of fact shall determine and the court shall consider evidence of the person's maturity based on the person's age and attendant characteristics.
D. IF THE TRIER OF FACT DETERMINES THAT THE applicable sentence or sentencing range should be reduced PURSUANT TO SUBSECTION C OF THIS SECTION, THE TRIER OF FACT SHALL MAKE A WRITTEN RECOMMENDATION OF the reduced SENTENCE or sentencing range AND INDICATE WHETHER PROBATION IS APPROPRIATE. IF THE TRIER OF FACT is the jury and a majority of the jury CANNOT AGREE ON A RECOMMENDATION, THE applicable sentence or sentencing range shall remain the same.
E. a special penalty recommendation pursuant to this section is not binding on the court at sentencing but does authorize a court to impose a reduced sentence if the court finds that the sentence is consistent with the special penalty recommendation and serves the interests of justice.
F. For the purposes of this section, "trier of fact" means a jury, unless the defendant and the state waive a jury in which case the trier of fact means the court. only a majority of the jury needs to agree on the special penalty recommendation. END_STATUTE
Sec. 5. Legislative findings
A. Before the American Revolution, English common law recognized distinctions between minors and adults when it came to the issue of criminal punishment. Children six years of age and under were considered to lack the capacity to form criminal intent in all circumstances and those thirteen and under were entitled to a rebuttable presumption that they lacked the capacity to form criminal intent. William Blackstone, Commentaries on the Laws of England, Ch. 17. With respect to juveniles with the capacity to form criminal intent, courts retained discretion to take age into account when deciding on the appropriate punishment.
B. In State v. Agundez-Martinez, 256 Ariz. 445 (2024), the Arizona supreme court interpreted Arizona laws to determine whether a defendant could be prosecuted as an adult for crimes he committed when he was between ten and twelve years of age. The Court "urge[d] the legislature to act so the courts are not forced to determine these directives on a case-by-case basis" and noted the possibility of "constitutional and prosecutorial uncertainty." 540 P.3d at 1212-13.