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January 1, 2016
A hard look at prosecuting juveniles in adult court

By Jan Pudlow
Senior Editor

They described it as “justice by geography” — where children in certain circuits are more likely to be prosecuted as adults, because of the discretionary power of elected state attorneys calling the shots without judicial review.

They bemoaned using “direct file” as a threat to get juveniles to plead guilty, to avoid being punished with harsher adult sanctions.

Rep. Katie Edwards They spoke out against sending juveniles to the troubled Department of Corrections, losing out on Department of Juvenile Justice programs and therapy that help them change their lives. Adult prison time, they argue, only teaches children how to be better criminals, committing more offenses once they are freed.

At the House Criminal Justice Subcommittee on December 1, the list went on, as many urged Florida to change its direct-file law.

Florida leads the nation in the number of children prosecuted as adults. According to a 2014 Human Rights Watch report, in the last five years, more than 12,000 juvenile suspects in Florida were transferred to the adult court system, even though more than 60 percent were for nonviolent felonies. Only 2.7 percent were prosecuted for murder.

Even though the proposed committee substitute for HB 129 — drafted to get the support of prosecutors — is “far from perfect,” Rep. Katie Edwards, D-Sunrise, urged its passage as “a starting point for taking the issue forward this session.”

The proposed committee substitute for HB 129 passed unanimously, with pledges from legislators to keep working on the bill.

The bill would, in part, eliminate the mandatory direct-file system and create a two-tier discretionary direct-file system, and would eliminate requirements that the court impose adult sanctions in specified situations.

But the crux of what advocates had hoped for — that judges have oversight in direct-file cases — was removed from the proposed committee substitute to appease prosecutors who want to keep their discretion. The bill is now in the Justice Appropriations Subcommittee, its second of three committee stops.

“What I hear is ‘I am not prepared to say, “I do,” but let’s have one more date and see how it goes.’ I would ask you to do just that, not to marry this, but to recognize that this long commitment to a concept needs to be something that we work towards,” Edwards said in closing on her bill, co-sponsored by Rep. Kathleen Peters, R-St. Petersburg, and Rep. Bobby Powell, D-West Palm Beach.

“And we do say, ‘I do,’ this session, because I am tired of doing this bill year after year, and I’m sure you are tired of hearing it, too. So let’s make 2016 the year that we finally, finally put this issue to rest and have meaningful, long-standing direct-file reform,” Edwards said.

Instead of testifying against changing the law, as he did last year, Buddy Jacobs, representing the Florida Prosecuting Attorneys Association, “waived in support.”

Rep. Ray Pilon, R-Sarasota, who co-sponsored last session’s bill opposed by prosecutors, said, “There’s no way that the Katie Edwards I know put pen to paper on this proposed committee substitute. Having said that, even if this was a shell bill with no language, I would encourage everybody on this committee to vote favorably, so we can move this thing forward and get it settled this session.”

Edwards argued that changing Florida’s direct-file law will enhance public safety.

“I want to dismiss the perception at the onset that we are going to allow a 17-year-old, who commits the most heinous, violent act, to be slapped on the wrist. That is nonsense. This bill does not do that. . . . I want to put that fear to rest,” Edwards said.

While she said she appreciates the support on the proposed committee substitute, Edwards added: “But let’s be realistic. Our prosecutors are elected officials who run on conviction rates. . . . Our investments in the Department of Juvenile Justice and those types of programs are paying off. To celebrate that, we should embrace it, reward it, and do more of it. But to simply say the conviction rates alone make or break someone’s political career as a prosecutor, and I should promote that type of fear-mongering, is unacceptable. And I would ask you not to fall prey to that.”

Sam Nuzzo, vice president of policy for The James Madison Institute, explained why a conservative think tank “strongly supports the policy of reforming direct-file.”

“We send children into adult institutions, where they become more than likely better criminals, thus increasing the long-term economic cost due to incarceration, social services, and lower employability,” Nuzzo testified.

“Secondly, the nature of the process itself has resulted in a dangerous constitutional due process issue. The decision on whether or not to charge a child as an adult rests not on the crime committed, necessarily, as much as it rests on what ZIP code a child commits the alleged offense in. We feel that justice by geography is not a constitutionally viable principle.”

The right policy, Nuzzo said, is to bring balance and transparency back into the process.

“And the best way to do this, in our opinion, is to let judges serve as the objective arbiter in most cases, of whether the circumstances and situation warrant charging a specific child as an adult,” Nuzzo said. “Unfortunately, I would like to point out that this proposed committee substitute does erode that ability. JMI is concerned that this proposed committee substitute is not in the spirit of the original bill, and it does not embody the conservative solution as we see it to this issue.

“It does keep the power in the hands of the prosecutor and leaves no room for judicial discretion.”

Rob Mason, director of the Juvenile Division of the Fourth Circuit Public Defenders Office, testified that the Florida Public Defender Association “supports direct-file reform, and we will continue to engage in meaningful collaboration with various stakeholders in the process.”

“Direct-file is like an elephant in the room that everybody is aware of, and it puts pressure on children, because of this amazing power that the prosecutors have,” Mason testified. “I am in a jurisdiction where the commitment rate is twice the state average, and the commitment rate for high- and maximum-risk commitments is more than triple the state average. That’s in Duval County.

“Again, it’s because of the fact that judges aren’t in the process of making these decisions. So it is not a transparent process, which is what it would be if you had judges making the decisions.”

But there are elements of the proposed committee substitute that the public defenders support, Mason said.

“We like seeing that the mandatory direct-file is eliminated. The mandatory adult sentences for certain crimes, they are also eliminated. We like the two-tiered system based on age: 16 and 17; 14 and 15. We believe that is proper. We like the consideration of competency, whether a child is competent or not in whether a case can move forward to be transferred [to adult court].”

Tania Galloni, managing attorney in Florida for the Southern Poverty Law Center, said: “What brings us to this issue is children are among the most vulnerable members of society, even when they break the law.”

She, too, said she is concerned about the “expansive list of offenses that are direct-file eligible, meaning the judge has no power to review. There is no oversight by the judge on those decisions, which is pretty much the status quo. Without judges, we are concerned that there is no fairness, no transparency, and there is no consistency across jurisdictions. That is the fundamental problem with direct-file. . . .

“Prosecutorial direct-file was created by this Legislature,” Galloni said. “This Legislature is the only one that can rein it in.”

(Comparable SB 314 is in the Criminal and Civil Justice Appropriations Subcommittee, its second of three committee stops.)




[Revised: 07-20-2016]