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March 1, 2014
Panel to lobby against direct filing of children

Supports judges being responsible for making the decision as to whether a juvenile should be prosecuted as an adult

By Jan Pudlow
Senior Editor

One of the Legal Needs of Children Committee’s top priorities for more than three years — and a key recommendation of its 12-year-old predecessor commission — was realized when The Florida Bar Board of Governors unanimously approved a legislative position to oppose the direct filing of children to adult criminal court in Florida.

Rob Mason “This is an issue that our committee is passionate about, obviously,” said LNCC Chair Bill Booth of the Legal Aid Society of Palm Beach County.

“We’ve wanted the permission to advocate the position as representatives of the committee. The BOG has now given us that permission. We are happy.”

After following protocol to notify the Public Interest Law Section and the Criminal Law Section, and hearing no opposition, Legislation Committee Chair Jay Cohen reported at the January 31 BOG meeting in Tallahassee that the committee’s vote was unanimous.

There was no debate before the BOG also gave its unanimous approval to this legislative position: “Consistent with the 2002 Final Report of The Florida Bar’s Commission on the Legal Needs of Children, the Legal Needs of Children Committee opposes the direct filing of children to adult court in Florida and supports the use of the judiciary as being solely responsible for making the decision as to whether a child should be prosecuted as an adult.”

According to the U.S. Department of Justice, 15 states give prosecutors the authority to direct file juveniles to adult court, and of those, 11 states allow a judge to review the decision, called a “reverse waiver,” an option not available in Florida.

Currently, Florida’s 20 state attorneys have sole discretion on prosecuting children as adults, and the practice varies from circuit to circuit.

Recent in-depth reporting by The Florida Times-Union documented there were 1,475 “direct commitments” — where plea deals landed juveniles in secure facilities for months or even years — in the Jacksonville area from 2009-13, compared to only 34 in Miami during the same period. Most of the Jacksonville area juveniles took plea deals after being threatened with adult sanctions.

Rob Mason, director of the juvenile division of the Fourth Circuit’s Public Defender’s Office, began pushing for changes to the law in 2010, when he volunteered to chair the Legal Needs of Children’s Direct Filing Subcommittee.

Mason said the prosecutors’ discretion has been unfairly used to “coerce pleas” from juveniles, whether they are guilty or not. Since 2009, Mason said, his office handled about three-quarters of the 1,475 cases where juveniles are incarcerated through “direct commitments,” and about four out of five of those juveniles — or about 800 — were first threatened with being charged as an adult.

Booth said: “It’s one thing to direct file and another to use it as a bargaining tool. Even though these are persons charged with delinquent acts, they are still children. That means their brains are not yet fully developed as that of an adult. Also, direct filing does not necessarily create a safer community.

“We appreciate the support of the Legislation Committee. They were well-versed and interested in the subject.”

The subject has been discussed and debated for years by members of both the Legal Needs of Children commission and committee.

“We’ve learned so much more about children, since that report actually came out in 2002, with the science. . . . 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,” Mason said in a July conference call, when the Legal Needs of Children Committee voted 18-0 with four abstentions to oppose the direct filing of children to adult court.

“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.”

[Revised: 08-04-2014]