Beginning in the 1990s, in response to an increase in juvenile crime, influential newsmen filled the airwaves with predictions of a coming wave of “superpredators.” As reported in a New York Times Retro Report, “The Superpredator Scare,” these politicians mistakenly believed crime would keep climbing, and fostered a myth that demonized youth, in particular young people of color. Some experts believed that we would soon see “radically impulsive, brutally remorseless” kids, many “who pack guns instead of lunches” and “have absolutely no respect for human life.”
Most states reacted to these now famously false predictions by enacting so-called reforms to make it easier to prosecute juveniles as adults. The trend was to expand the “transfer” of youth from juvenile to adult courts, a policy we are still paying for today with harsher penalties and an increase – not a decrease – in recidivism. According to Al Jazeera America, currently in the United States, about 250,000 juveniles are “tried, sentenced or incarcerated each year as adults,” – a truly staggering number.
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There are well-known negatives to sending kids to adult prisons. Truthout’s research has found that there are fewer resources vital to teen development in adult facilities, as well as a high risk of assault, rape and suicide. Such dangers for juveniles have led to the criticism of juvenile transfer policies from numerous organizations and researchers according to the well-respected national initiative, the Campaign for Youth Justice.
Youth tried in adult courts can end up with lifelong criminal records.
Sending kids to adult courts can happen in various ways: Depending on the state, and upon the crime and age of the juvenile, transfers sometimes occur automatically by law, and sometimes occur by discretion, for example, if a judge decides to transfer a case based on what standards the state upholds. There’s also a little-publicized but highly dangerous third approach: Prosecutors in 15 states and the District of Columbia are given unregulated power to unilaterally decide whether a child will be charged as an adult or as a juvenile.
By a process called “direct file,” prosecutors can bypass juvenile and family court jurisdiction to determine what type of sentence a youth may receive if convicted. As noted in the Miami Herald, “Not only does direct file omit a disinterested arbiter for the child’s best interests, it plunges youngsters – and increasingly those charged with nonviolent crimes – into the much more punitive adult system.” It is certainly not only being used for what prosecutors like to call “the worst of the worst.”
Direct file occurs in California, Michigan, DC, Florida, Louisiana, Georgia, Pennsylvania, Montana, Nebraska, Oklahoma, Vermont, Wyoming, Virginia, Arizona, Arkansas and Colorado.
Recently, direct file has come under close scrutiny, as it is a particularly troubling part of the problematic puzzle of why we continue to try kids as adults. We know well that kids tried as adults face much longer sentences; their rehabilitation is not key, as it would be in juvenile court; in adult court, judges don’t have to make the proceedings comprehensible to a child; youth tried in adult courts can end up with lifelong criminal records.
So who does this antiquated practice serve?
District Attorney’s Abuse of Authority
On February 17, 2016, the Southern Poverty Law Center (SPLC) published a report declaring the extent of the mistreatment that the practice of direct file can generate. SPLC recounted that New Orleans District Attorney Leon Cannizzaro is sending Louisiana juveniles to be tried in adult courts in unprecedented numbers. In fact, since 2009, he’s sent more than 200 kids to adult courts. These are youth, says SPLC, who may have no prior delinquency record, and may have played a minor role in the crime in question. Some have a record of mental illness.
Florida sends more children to adult courts than any other state in the country.
While Cannizzaro’s office had the option to prosecute in either juvenile or adult court, 80 percent of the cases that they handled between 2011 and 2015, involving 15- and 16-year-olds, were sent to adult court. Senior research fellow Vicki Mack, in a study for the Data Center, reported that 39 percent of these children live in poverty.
SPLC also noted that the Louisiana Center for Children’s Rights, the juvenile public defender for Orleans Parish, found that “13 percent – more than 1 in 8 – of New Orleans’ transferred children, are found not guilty, have their charges dismissed, or are found to be incompetent and legally ineligible to be prosecuted.”
What’s going on here? Is it the need for power that allows the DA to ignore research? According to the SPLC report, “Cannizzaro himself declared to the City Council that he would charge as adults children who were legally incompetent to stand trial.”
In a talk at Harvard University in 2015 entitled “The Promises and Perils of Adolescent Neuroscience and the Law,” Dr. Leah Somerville explained how neuroscience backs up the psychological understanding that the juvenile brain is different from the adult brain. Researchers agree that adolescents’ impulsivity, risk-taking, poor planning for the future, lack of foresight of consequences, poor decision-making and bad judgment can be backed up with science. Decisions that people make as adolescents do not determine what decisions they’ll make as adults. Even the National District Attorneys Association’s National Prosecution Standards takes this information into account, says SPLC, but apparently, not the DA of Louisiana.
Florida’s Direct File Disaster
Florida is another one of the 15 states with direct file policies, deciding in the midst of the superpredator fever to “crack down on crime.” However, according to Human Rights Watch, of the 1,535 children tried in adult courts in 2012 and 2013, 865 were accused of committing nonviolent felonies and 54 faced misdemeanor or other non-felony charges in adult courts.
Take Oliver B. for example. Human Rights Watch reported in 2014 that he was prosecuted in an adult court in Florida when he was 16 for stealing two laptops from a high school classroom. In Florida, as well as in Nebraska and Vermont, a prosecutor can indict any juvenile for any felony starting at age 16. Florida even permits kids accused of misdemeanors to be charged as adults under certain circumstances.
There is no evidence that direct file discourages youth crime.
The bipartisan campaign to reform Florida’s devastating juvenile laws is spelled out in the policy brief, “No Place for a Child.” Florida sends more children to adult courts than any other state in the country. Ninety-eight percent of these kids are transferred to an adult court by direct file “without any input or oversight from a judge.” Additionally, the bipartisan campaign to reform Florida’s laws notes that Black and Latino children are “60 percent of children arrested in Florida but 76 percent of those sent to adult court.” According to Human Rights Watch, 10 states, including Florida, give prosecutors the ability to charge a 14-year-old in adult criminal court for certain infractions; in Montana, a child as young as 12 can go to criminal court; in Nebraska, there is no age limit for certain felonies. So depending on where a child commits her crime, she may or may not get an adult sentence.
Florida’s transfer law is the harshest of all states that allow direct file, reported Alissa Figueroa in a Fusion article. Kids as young as 14 can be sent to adult court, even for misdemeanor charges. The most common charge in 2014 was burglary, and only 2.7 percent of all Florida cases in 2012 and 2013 were for murder, according to Figueroa.
Not unlike in New Orleans, prosecutors in Florida use this power. There is no hearing and no input from a judge. It’s no surprise that the prosecutors say that direct file gives them “flexibility.” But what are the real reasons prosecutors go for direct file?
“Prosecutors want to dole out heavier punishment. They want kids locked up for a long time because then they think they won’t commit new crimes,” Massachusetts defense attorney Keren Goldenberg told Truthout. “This is based on a false belief that punishment will deter new crimes, and that’s proven false, but plenty of people believe just because they’re young, kids shouldn’t be treated any differently. Just send them away for a long time.”
Changing Direct File
In a 2011 article about Colorado’s direct file process, journalist Natasha Gardner called it “direct fail.” Colorado, too, had its summer of bloodshed and death in 1993, when it seemed that there was no end to youth violence. “Direct file became a fast lane to adult prison without the two-day transfer hearings and judges to consider the prosecutor’s request,” Gardner wrote. In Colorado, it was the DAs “who decided whether a 14-year-old was a child or an adult.”
Juvenile crime rates have plummeted in recent years, but there is no evidence that direct file discourages youth crime. In the summer of 2006, researchers Benjamin Steiner and Emily Wright published a study on direct file waiver laws, concluding they had virtually no effect on violent juvenile crime. Their research showed that there was no reason to believe that lower crime rates had anything to do with direct file.
Colorado has made some progress to end aspects of direct file. The Equal Justice Initiative reported that in April 2012, Colorado Gov. John Hickenlooper signed into law a bill that dramatically curbed prosecutors’ power to charge children as adults. The legislation was the result of a grassroots campaign that convinced lawmakers they were on the wrong path. Liz Ryan, the president of Campaign for Youth Justice, who reported on the success, said the testimony of the young who are affected and their families was crucial to passing the legislation. The bill stopped DAs from “charging juveniles as adults for many low- and mid-level felonies, while raising the age at which children may be charged as adults for more serious crimes from 14 to 16.”
However, the nature of the crime does not change the fact that a child is not a little adult. As Boston Review managing editor, Simon Waxman, wrote for Cognescenti, “If there are good reasons to treat adult and youth offenders differently, why are those reasons discarded according to the severity of the crime?” As elucidated in the recent 2012 groundbreaking case Miller v. Alabama, revisited recently in Montgomery v. Louisiana, and proven by neuroscience and behavioral research, “children who commit even heinous crimes are capable of change.” While this does not mean that adults cannot change, recent neuroscience has made it clear that the adolescent brain is a work in progress.
As Massachusetts juvenile justice Jay Blitzman put it in an email to Truthout, “Children are constitutionally different from adults and while culpable for their conduct, principles of adolescent brain development and maturation are critically important factors. Direct filing, which makes categorical assumptions about all juveniles who are accused of specified crimes, fails to recognize the changing legal landscape.”
There have been some advancements toward ending harsh juvenile practices. The New York Times reported in 2013 that 11 states have passed laws to keep some juveniles out of adult prisons, including Pennsylvania, Texas and Virginia. Eight states, including California, Missouri and Washington, passed laws to alter mandatory minimum sentencing for youth charged as adults. Four states – Connecticut, Illinois, Massachusetts and Mississippi – broadened powers of the juvenile court system, allowing for more cases of those who would have automatically been tried as adults. Twelve states, including Arizona, Nevada, Ohio and Utah, adjusted their laws governing transfer.
Yet, sending a juvenile to an adult prison under any circumstances does not improve recidivism and does not deter crime. Direct file is clearly a direct fail.