In the Courts:
Juvenile Automatic Transfer Rule Deemed Retroactive
By: Lianne Foley
On December 1st of 2016, the Supreme Court of Illinois held in People ex rel. Alvarez v.
Howard that defendant Luis Montano would have the opportunity to re-open his criminal case in
order to have his case tried in juvenile delinquency court, as opposed to adult criminal court. Luis
Montano was charged by a grand jury for twenty-nine counts of first degree murder for shooting
and killing Eugenio Solano. Luis Montano was also found guilty for four counts of attempted
murder and one count of aggravated battery arising out of the shooting of Raul Maza. The crux of
this case was centered on the issue of whether the newly amended statute, 705 ILCS §405/5-130,
entitled “Excluded Jurisdiction,” was meant to apply retroactively or prospectively. When a statute
applies retroactively, the new statute will have an effect on cases in the past. When a statute applies
prospectively, it affects only cases moving forward from the date on which the statute was passed.
The “Excluded Jurisdiction” statute is part of the Juvenile Court Act of 1987. The Juvenile
Court Act is based on the belief that children, youth, and families involved with the juvenile and
criminal courts should be guarded by federal standards for care and custody, while also upholding
the interest of community safety and the prevention of victimization. “Excluded Jurisdiction” in
sum, lists exceptions as to when a juvenile or criminal court no longer have the power to hear a
youth’s case. These exceptions include when a minor has engaged in any of the following offenses:
first degree murder, aggravated criminal sexual assault, and aggravated battery with a firearm.
Essentially, if a minor is at least sixteen years of age and committed any of the aforementioned
offenses, the automatic transfer rule will apply. This rule requires a juvenile’s case to be
automatically transferred from juvenile delinquency court to adult criminal court, causing the
minor to be treated, prosecuted, and sentenced as an adult, in accordance with the criminal laws of
the State. The automatic transfer age in Illinois under the “Excluded Jurisdiction” statute was
previously fifteen. However, recent legislation has increased the automatic transfer age to sixteen.
When Luis Montano, the defendant in Alvarez v. Howard, was found guilty of murder,
attempted murder, and aggravated battery, he was fifteen years old. At the time, the “Excluded
Jurisdiction” of the Juvenile Court Act had the automatic transfer rule set at fifteen years of age
and thus, Luis Montano was tried in front of a grand jury. Once indicted, Luis Montano was held
in adult criminal court while waiting for his sentencing hearing, during which a Sentencing Judge,
usually the same Judge who has been assigned to the case from its inception, makes an independent
assessment of all of the evidence and determines a sentencing period. In Luis Montano’s case, due
to the heinous and violent nature of his crimes, Montano would most likely be looking at twenty
to thirty-five years of prison time.
While Luis Montano was waiting for his sentencing hearing in adult criminal court,
amendments to the Juvenile Court Act changed the “Excluded Jurisdiction” age from fifteen to
sixteen, limiting the automatic transfer rule’s application to those juveniles who had committed
the aforementioned offenses at the age of sixteen. In light of this amendment, Luis Montano moved
to send his pending criminal case to juvenile delinquency court for a discretionary transfer hearing
because the newly amended legislation no longer allowed for his criminal case to be tried in an
adult court, as he had committed the offenses at the age of fifteen. The Honorable Judge Carol M.