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November 15, 2010
Are too many kids prosecuted as adults?

Legal Needs of Children Committee looks at direct-filings

By Jan Pudlow
Senior Editor

As director of juvenile court for the Fourth Circuit Public Defender’s Office, Rob Mason has noticed an upswing in the number of children prosecuted in adult court.

He’s troubled by what he calls “coerced pleas” and gives 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,” Mason said.

Witnessing such coerced pleas prompted Mason to volunteer to chair the Direct Filing Subcommittee of the Bar’s Legal Needs of Children Committee.

Five members of the subcommittee have had their first telephone conference, and now the goal is reaching out to others, especially prosecutors and judges, to get a range of perspectives,

Mason said the subcommittee wants to explore these recom-mendations from the predecessor Legal Needs of Children Commission in its 2002 final report:

• Allow judges to make all transfer decisions, instead of the current practice of giving discretion to state attorneys.

• Repeal mandatory direct filing of juveniles charged with certain crimes.

• Eliminate 10-year minimum mandatory sentences for juveniles convicted as adults for the first time, and allow judicial
discretion to waive other minimum mandatory sentences for juveniles in adult court.

• Give judges alternative sentencing options, including allowing secure detention as a condition of juvenile probation, and allowing blended sentencing that mixes juvenile and adult sanctions.

“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.

Mason distributed copies of a story in Folio Weekly, in which Mason is quoted: “You’re up there in adult court, and it’s like the State Attorney’s Office and the judges have a magic wand and they say, ‘Poof! You’re an adult now.’ Yet the child next to me is still 15 years old.

“I wish I had that magic wand at sentencing, because I would say, ‘Poof! Now you’re a 75-year-old white investment banker charged with embezzlement — now we’re ready for sentencing.’”

In Florida, youth as young as 14 can be tried as adults, and youth of any age who have been charged with violation of a state law punishable by death or life imprisonment can be charged as an adult.

“Florida is at the top of the national chart when it comes to the number of youth transferred to adult court each year,” according to a special project report from the Lyndon B. Johnson School of Public Affairs at The University of Texas at Austin called “From Time Out to Hard Time: Young Children in the Adult Criminal Justice System.”

“From 2001 to 2006, Florida tried between 2,500 and 3,000 youth as adults. Beyond the high number of transfers, Florida is one of 22 states that has not created a statutory minimum age for transfer to adult court in murder cases, which means that theoretically a 7-year-old accused of murder could stand trial in the adult criminal system in the state. Indeed, there are examples of children as young as 11 being tried as adults in Florida,” the report says.

“The confluence of mandatory transfer laws and extremely harsh, mandatory adult sentences, even for pre-adolescent children, make Florida a prime focus for reform in this arena.”

When the Legal Needs of Children Committee met at the Bar’s Midyear Meeting, Mason said: “We are hoping to come up with an official position that the committee can endorse. . . . It’d be great to get The Florida Bar to take it as their position. It made a huge difference with the shackling issue,” Mason said, referring to victory in the Florida Supreme Court, when on December 17, 2009, a majority of justices called the indiscriminate shackling of children in Florida’s courtrooms “repugnant, degrading, humiliating, and contrary to the stated primary purpose of the juvenile justice system,” and said restraints may be used only when determined necessary on a case-by-case basis.

“This committee was able to help the Board of Governors take a position, and it made things much easier getting that rule passed.”

Eleventh Circuit Public Defender Carlos Martinez offered advice to include prosecutors in the discussion. He sat on the Department of Juvenile Justice Blueprint Commission, where he said direct-filing was “hotly debated” and consensus was not reached.

Direct-filing is listed under “unresolved issues” in the Blueprint Commission’s January 2008 report, “Getting Smart about Juvenile Justice in Florida,” that said: “In Florida in the last five years, the trend to charge juveniles as adults has increased. Though the total number of youth referred to [DJJ] declined more than 6 percent from 2003-07, the number of youth referred to adult court increased 23 percent.”

“In the Legislature, prosecutors carry more sway than anyone else on this issue,” Martinez said. “You can show them all the research on recidivism. It doesn’t matter until there’s a discussion with them to get some compromise. Shackling shocks the conscience. But direct-filing, to a lot of people, does not shock the conscience.”

“It is quite shocking to the conscience when you see who is being direct-filed,” added Joyce Cohen, assistant regional counsel in District 4 in West Palm Beach and a member of the Juvenile Court Rules Committee.

She said her “stomach still gets in knots” when she thinks about her 15-year-old client who, along with some others, knocked someone off their bike and stole $72. Even though it was her client’s first offense, the state attorney decided to direct file her client to adult court, because anything that falls under a robbery charge can be direct filed at the prosecutor’s discretion.

Though Cohen is careful not to criticize the state attorney or any state agency, she said she wants transparency in how prosecutors make decisions to direct-file.

“They could be in a back room flipping a coin for all we know,” she said.

And the legislative intent of the direct-filing statute, Cohen points out, says it is to be applied to juveniles who cannot be rehabilitated through the juvenile justice system or are dangers to society.

“How can we possibly know if a child can’t be rehabilitated when it’s his first offense?” she asks.

The problem with adult sanctions, she said, is that the children “get no services. Now they have an adult arrest on their record, which will follow them the rest of their lives. They don’t get the opportunity to be put on the right track.”

Her 15-year-old client had the opportunity to go to a Boys Town out of state, where he could go to school and play football. But because he was direct-filed in adult court, Cohen said, that opportunity was lost. She filed a motion to remand the child back to juvenile court, but the judge did not feel he had the authority to overrule the state attorney’s discretion.

“We tried to file an appeal, but the court of appeal wouldn’t hear this,” Cohen said. “The only way we can do something is to get it changed legislatively.”

Cohen and her colleague, Jason Siegel, have worked on proposed legislation that would call for transparency and uniform criteria for direct-filing throughout the state. Siegel has studied the direct-file policies throughout the state, and found “the more general the policy, the more kids are direct-filed in any given circuit.”

Secondly, their proposed legislation would create a reverse waiver, where a judicial hearing would be afforded the defendant to challenge the prosecutor’s decision to direct-file, with a presumption the state made the right decision.

Last year SB 2568, sponsored by Sen. Chris Smith, D-Oakland Park, and HB 1245, sponsored by Rep. James Bush III, D-Miami, died in committees.

Cohen and Siegel hope their proposed legislation succeeds in the upcoming legislative session.

“I do hope we can work together with the state attorneys to come up with something that is fair and gives some uniformity to the decision-making process, and redirect the process to comply more with the legislative intent of the direct-file statute,” Cohen said.

“We’re not saying prosecutors can’t do it, but make the process transparent. And they shouldn’t do it for a first offense. . . . We want this to be an opportunity to work together to help children and promote judicial efficiency and still promote victim rights.”

“I think every kid deserves a second chance,” Siegel added. “That’s what we really want: an opportunity to see if they can change their lives around.”

[Revised: 10-22-2014]