The following post is a winning submission for the 2015 Jason Libou Online Writing Competition. Competitors were prompted to write a blog post on a topic of their choice relating to urban law and policy.
By Claire Glass
Florida has been deemed the most ferocious state when it comes to charging juveniles as adults, but signs of modest reform are brewing with five bills under review as of March. Among those bills, Florida lawmakers are expected to consider House Bill 783, which would scale back the unilateral power of prosecutors to “direct file,” or send minors into the adult justice system, and often adult jails, without judicial oversight.
In Florida, which has the most expansive statute, kids accused of property offenses and some misdemeanors wind up in adult court. Under 783, prosecutors would retain authority to send 16 and 17-year-olds to adult court for 20 offenses, including murder, carjacking, armed robbery, and kidnapping. As for 14 and 15-year-olds, direct filing would be limited to murder, manslaughter, and aggravated sexual battery. Finally, 783 would ban adult indictments for juveniles under age 13.
Fifteen states have direct file statutes on the books. Although there’s variation by state, they all endow prosecutors with significant discretionary authority to transfer juveniles to adult court, a decision that would otherwise be made by a judge in a certification hearing.
The problem does not end there; direct filing also means pretrial detention in an adult jail for youth who can’t post bail, leading a minor whose case might ultimately be dismissed or decertified back to juvenile court to languish in the adult system, sometimes for up to a year awaiting their day in court. According to Human Rights Watch, 98 percent of Florida youth in adult court, for example, were transferred through the direct file process.
A February, 2015 report by the VERA Institute of Justice characterizes jails as warehouses for the poor whose counterparts with economic resources to post bail walk free before trial. Due in part to direct filing, youth are caught up in that population by the thousands, missing school, facing solitary confinement, and sexual assault.
Youth transferred by direct file are not entitled to be separated by “sight and sound” from the adult population under the Juvenile Justice and Delinquency Prevention Act. As result, kids for whom the adult system will be deemed inappropriate may be thrown into the general jail population.
Even when implemented, sight and sound separation is no guarantee of better treatment. Indeed, just this week a Baltimore jail came under fire for housing juveniles in solitary confinement, sometimes for as long as 140 days. Youth in the adult and juvenile justice systems are entitled to mental health services, education, but 40 percent go without in pre-trial detention in adult facilities.
According to the Campaign for Youth Justice, two thirds of youth detained pretrial are held in adult jails following transfer to the adult system, with more than half spending a month or more, and twenty percent more than 6 months. In some states, including Pennsylvania, even if a case is dismissed, kids retain adult criminal records from the time spent in pretrial detention, requiring proactive steps to clear their records, according to Youth Sentencing & Reentry Project co-founder Lauren Fine.
Like the rest of the criminal justice system, minority youth are disproportionately subjected to the adult system as compared to their white counterparts. A study of 40 large urban jurisdictions revealed that 60 percent of white juveniles are released pretrial, while 54% Latino youth prosecuted in the adult system were detained pretrial, and 72 percent in adult jails. The Economist reports that “in 2012 black youths were 40 percent more likely to be charged as adults as their white peers, according to the Justice Department.”
Four other bills have made progress in Florida’s legislature this year to reign in direct file discretion. With the country’s harshest state on juveniles considering some degree of reform, there’s some hope that the rest of the country will follow suit.
Sources:
https://www.themarshallproject.org/2015/03/24/the-worst-state-for-kids-up-against-the-law
http://capitolcomments.blogs.theledger.com/10870/bill-would-limit-adult-court-for-minors/
http://politics.heraldtribune.com/2015/03/20/bill-would-limit-adult-court-for-minors/
http://www.campaignforyouthjustice.org/documents/Transfertalkingpoints.pdf
http://campaignforyouthjustice.org/documents/Latino_Brief.pdf
https://www.themarshallproject.org/2015/03/24/the-worst-state-for-kids-up-against-the-law
http://www.hrw.org/news/2015/02/19/florida-limit-prosecuting-children-adults