‘For direct file, we believe the laws of Florida are unfair and that it should be a judicial decision, not a prosecutor’s decision’
By Jan Pudlow
The Florida Bar Legal Needs of Children Committee voted to oppose the direct filing of children to adult court, but if that law is not abolished in Florida, the decision to prosecute children as adults should rest with judges, not prosecutors.
The vote was 18-0 with four abstentions during a July 17 conference call, capping nearly three years that the committee has worked toward consensus.
“I’m excited about the committee’s vote,” said Chair Bill Booth, of the Legal Aid Society of Palm Beach County. “We have made a statement that we hope the state uses to minimize the prosecution of children as adults. Our plan is to seek the Board of Governors’ approval of this position statement and to submit this statement to the Department of Juvenile Justice for its consideration during its review of Chapter 985.”
Members agreed on this statement: “[The committee] opposes the direct filing of children to adult court in Florida and believes the judiciary should be solely responsible for making the decision as to whether a child should be prosecuted as an adult.”
Among the facts gathered leading up to the vote was that children who are transferred into the adult system reoffend at both a higher and more serious rate than children who are dealt with in the juvenile justice system, yet in 2011-12, more than 2,000 children in Florida were transferred to adult court for prosecution.
“I believe it’s a big deal,” said outgoing Chair Rob Mason, director of the juvenile division of the Fourth Circuit Public Defender’s Office. Mason began pushing the issue in 2010, when he volunteered to chair the committee’s Direct Filing Subcommittee.
“For direct file, we believe the laws of Florida are unfair and that it should be a judicial decision, not a prosecutor’s decision,” Mason said, noting that was recommended by the predecessor Legal Needs of Children Commission in its 2002 final report.
“We’ve learned so much more about children, since that report actually came out in 2002, with the science. So I think that this vote of a committee as diversified as this is just a really good sign that, hopefully, the tide is turning, and we should turn this over to judges making the decisions, as opposed to prosecutors. And if we don’t, then it should be significantly limited.
“The way it works now is any child 16 or 17, on a felony, can be direct filed. They can be direct filed on a misdemeanor if they have one or two priors,” Mason said. “At 14, they can be direct filed for most significant felonies. It’s not limited to car-jacking and armed robbery. When you look at the list, it’s not as significant as you would think. And, sometimes, the facts of a case, really, that’s not the true feel for what the statute might say the violation is. It’s been expanded too much through the years. And I think the pendulum needs to swing back the other way. After reflecting on the matter, that’s what the committee has done.”
Mason shared his frustrations with the direct-file law in a November 15, 2010, Bar News story (“Are too many kids prosecuted as adults?). Troubled by what he calls “coerced pleas,” Mason gave this example:
A child is given two choices: plead guilty, serve nine to 18 months in juvenile detention, and keep it on the juvenile record or be prosecuted as an adult, face a life sentence, sit in jail unable to make a high bond and wait 18 months to go to trial anyway.
“It looks good even if the child is not guilty. Direct filing of children does not work. It is more likely they will commit crimes sooner, with higher recidivism. It just plain doesn’t work,” Mason said, backed by findings of a June 2010 report released by the U.S. Department of Justice’s Office of Juvenile Justice and Delinquency Prevention.
The committee’s vote also underscored its position that if direct filing is not abolished in Florida, the following principles should be applied when drafting new direct filing legislation (current F.S. §985.557):
* Mandatory direct filing should be abolished.
* Children with prior felonies should only be direct filed if the child is charged with homicide or the child is at least 16 years of age at the time of the offense, and has been charged with a felony crime involving violence against a person in which the offense was heinous and premeditated, and a written explanation as to why the child was direct filed has been filed with the court.
* Children with prior felonies should only be direct filed if the child is at least 16 years of age at the time of the offense and has been charged with a felony crime of violence against a person.
* Children should not be direct filed on misdemeanor offenses.
* Children who have been adjudicated incompetent to proceed should not be direct filed unless they meet the criteria listed above and have been restored to competency.
* Children who have been direct filed should be entitled to a pre-adjudication reverse waiver hearing, i.e., a judicial review hearing as to whether the child should be prosecuted in adult court or transferred back to juvenile court (as most states have).