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Curbing Prosecutors’ Power Over Youth

New legislation in Colorado has kept kids who get in trouble with the law out of adult courts and adult jails – without harming public safety.

 James Stewart was a popular 17-year-old high school football player in Denver, Colorado. After drinking too much at a back-to-school party in August, 2008, he tried to sleep it off. But before he was absolutely sober, he decided to drive home. Still intoxicated – and speeding – he hit another car head-on, killing the other driver, a young married man.

Stewart was initially sent to a juvenile detention facility, where he attended group counseling sessions and talked to his family about ways that he could serve as an example to his peers about bad decision-making. But, within a few weeks, Denver prosecutors decided to try Stewart in adult court on charges of vehicular manslaughter and he was moved to the Denver county jail.

As a teen in that adult facility, he was on lockdown for 23 hours a day. For a while, however, he shared a cell with another youth under 18 and he found it helpful to have someone else to talk to. But, after he and the cellmate had a fight, Stewart was put in solitary confinement, despite his protests. Within 24 hours, he committed suicide. He had been in the adult jail about two months.

Stewart’s high-profile case was one of two suicides that year that brought new attention to Colorado’s practice of allowing prosecutors to charge children in adult court and send them to adult jails, without a hearing in either juvenile or adult court. This practice, known as “direct file,” gave prosecutors extraordinary power over kids who were in trouble with the law.

The practice was one of several changes enacted in response to over-publicized juvenile crime during a special legislative session in 1993. Like many other similarly punitive laws across the nation, Colorado’s new laws made it easier to convict children as adults. This was a giant step back from the reasoning that spawned the juvenile court system more than a century ago — namely, that children are different from adults and young offenders should be handled in a separate system that can meet their needs better.

That same reasoning has now persuaded the U.S. Supreme Court to help ensure that the justice system treats kids as kids. Starting in 2005, the Court has relied on recent brain development research showing that adolescents generally lack the ability to control their impulses and to make sound judgments. But the research also shows that they are likely to grow out of their immature behavior and to benefit from rehabilitative programs.

As a result, in four important cases, the Court has banned the death penalty for crimes committed before age 18, as well as juvenile life without parole in non-homicide cases and mandatory juvenile life without parole in homicide cases. It has also ruled that age is relevant when determining if a suspect should be given a Miranda warning. All these decisions are helping to fuel recent juvenile justice reform efforts.

Back in the 1990’s, however, juvenile crime seemed to be on the rise and dire – and unfounded – warnings about so-called “superpredators” wreaking havoc across the country helped push Colorado and other states to impose harsher punishments against youth.

In Colorado, an analysis of the legislative changes made in 1993 found that the impact went far beyond the target group of youth committing the most serious offenses. According to a report, called “Re-Directing Justice,” by the Colorado Juvenile Defender Coalition, a Public Welfare Foundation grantee, only five percent of 1,800 direct file cases in a decade, involved first-degree murder and 85 percent of youth prosecuted in the adult system are not accused of killing another person. Most of the charges involved middle- to low-level felony offenses, such as burglary and robbery.

As the report summarized, “Statistics show that ‘direct filing,’ prosecuting youth as adults, has cast too wide of a net…The direct-file law has been used to try thousands of Colorado youth as adults, inappropriately incarcerate them in adult jails and prisons, and mark them with lifelong felony convictions.”

Kim Dvorchak, CJDC’s executive director, says that the expanded direct file law was particularly troublesome because youth accused in adult court had no mechanism, such as a hearing or an appeal, to go back to juvenile court. And prosecutors would often use the threat of direct file to get youth to accept harsher plea deals.

“There was this huge imbalance of power between the prosecutors and defense attorneys around this filing decision,” says Dvorchak. “They [prosecutors] were not just choosing the charge, they were choosing the court that youth were going to be subjected to punishment in.”

Under another related law, the charging and jurisdiction decisions also determined whether a youth would be held in a juvenile or an adult facility. “So, prosecutors would decide where to charge you and then where to incarcerate you,” Dvorchak adds.

Gradually, the State Legislature tried to chip away at the excesses of the 1993 laws. In 2008, the State Legislature passed a bill that would have put reasonable restrictions on prosecutors’ direct file power, but it was vetoed by then-Gov. Bill Ritter.

That’s when CJDC started to mount a more comprehensive campaign to change the laws. And one source of motivation was Nicole Miera, the oldest of James Stewart’s four sisters, who now serves on the CJDC board.

When a new direct file reform bill was introduced late in 2010, she told legislators about her brother’s failure to adjust to the county jail:

“He felt that in the county no one really cared and [he] compared it to being in hell…The county jail is not and cannot handle the needs and supervision that juveniles require. James had not yet fully formed and become independent. [H]e did not have the strength nor the knowledge to overcome 23 hours a day in lockdown.”

Using such personal stories as well as the data, CJDC pulled together civil rights, mental health and other groups to join the campaign for reform. The national organization, Campaign for Youth Justice, also a PWF grantee, provided support to the effort.

Closer to home, the Republican Majority Whip in the Colorado House of Representatives championed the issue and brought along many of her colleagues who were concerned about checks and balances. Various media outlets ran stories and editorials that also helped make the case.

Early in 2012, two pieces of legislation passed – and were signed by Gov. John Hickenlooper – treating more Colorado youth like the kids they are. Under the new laws, prosecutors cannot direct file youths under the age of 16, the list of offenses that would allow 16- and 17-year-olds to be direct filed has been narrowed and any older youth sent to adult court can seek a “reverse transfer” hearing to get back to juvenile court.

In addition, kids being tried as adults must remain in a juvenile facility unless the facility petitions for them to be transferred to adult jail, in which case the youth has a right to a hearing and reconsideration.

Reflecting on the changes, LizRyan, president of the Campaign for Youth Justice, says, “The Colorado campaign demonstrates that when communities organize and directly affected youth and families are at the table, positive change can happen…The Colorado success is a national model that should be replicated in other states.”

Since the law took effect in April, 2012, the number of juveniles who have been direct filed has dropped 75 percent and the number of youths held in adult facilities has dropped from an annual count of about 90 to two or three so far.

“So now direct file is for 16- to 17-year-olds accused of the most serious offenses,” says Dvorchak. “And they all have the right to have their cases reviewed in court. Before, judges were not reviewing these cases at all.”

Dvorchak notes that the most meaningful impact of the new law “is that there will be judicial review and individualized decision-making for every child facing adult prosecution when it comes to both the filing decision and the jailing decision.”

That, she adds, “completely changes the power dynamic” between prosecutors and defense lawyers in these cases.

“Youth actually have a chance now [to get the right result] that they didn’t have before,” she says. “It’s a monumental change in policy and practice.”

ABOUT THE PUBLIC WELFARE FOUNDATION

The Public Welfare Foundation supports efforts to advance justice and opportunity for people in need. These efforts honor the Foundation’s core values of racial equity, economic well-being, and fundamental fairness for all. The Foundation looks for strategic points where its funds can make a significant difference and improve lives through policy and system reform that results in transformative change. For more information, visit www.publicwelfare.org. Follow the Foundation on Twitter or on Facebook.

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