Download No Place for a Child: Children in the Adult

The Journal of The James Madison Institute
No Place for a Child:
Children in the Adult
Criminal Justice System
by Deborah Brodsky
M
ore than 100 years ago our
U.S. juvenile justice system
was established, with the first court
created in Chicago, precisely because
it was recognized that kids are fundamentally different than adults, and
therefore were afforded distinct legal
status. Because of the perceived
differences, rehabilitation became
the intended central focus and
approach to children interacting with
the justice system. More recently,
advancements in neuroscience and
developmental psychology have
continued to underscore the differences between children and adults in
terms of brain development.1
However, throughout the years,
the nation shifted decidedly toward
punitive approaches in an overzealous quest to stem crime. Among the
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harshest — and most counterproductive — of these approaches has been
states’ adoption of legislation that
allows children to be prosecuted and
tried as adults. Once in adult court,
children are subject to the same
sanctions as adults, including adult
prison, adult probation and adult
jail. Moreover, they are commonly
excluded from the rehabilitative
programs that are available to youth
in the juvenile justice system.
Florida prosecutes more children
as adults than any other state in
the nation. Prosecuting children
as adults has failed as an effective
public policy. Instead of reducing
crime, prosecuting a child as an
adult produces crime by making
youth more likely to commit crimes
in the future. Laws that enable chil[61]
The Journal of The James Madison Institute
dren to be prosecuted and punished
as adults harm thousands of youth
and their families each year, create
economic burdens on the State, and
make our communities less safe and
less secure.
The Myth of the Juvenile
Superpredator
In the 1990s, a couple of wellplaced social scientists actively
promoted the myth that the United
States would soon face a growing,
imaginary army of youth described
as “superpredators.”2 This flawed
theory about juvenile crime emerged
based upon erroneous projections of
the growth in the juvenile population
and its potential impact on crime.3
This “new breed” of youth criminals
was expected to be so violent and so
remorseless that they would wreak
unspeakable havoc upon society.
Although these predictions
unleashed a groundswell of media
promotion and public panic they,
thankfully, never came true. In fact,
the very criminologists responsible
for these faulty assertions have since
recanted their predictions.4
However, before this myth could be
thoroughly debunked, the damage
had been inflicted. In a matter
of years, the nation funneled its
unfounded panic deep into public
policies and practices based upon
fear and not upon what works. Policy
makers across the country either dug
in their heels or turned increasingly
to harsher, more punitive sanctions.
In particular, almost every state
passed laws that made it easier to
try juveniles in adult criminal courts
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through juvenile transfer laws.5
And like a snowball rolling
downhill, these policies have been
propelled by inertia and gravity,
dragging thousands of youth unnecessarily more deeply into the adult
criminal justice system when all the
while a more effective alternative has
existed: the juvenile justice system.
Florida was no exception.
Florida’s Juvenile Transfer Laws
Even in a national context of
increasingly punitive sanctions
toward court-involved youth, Florida
stands out as an exceptional case.
Florida was a “dug in its heels” state,
having responded earlier than many
states by putting in place a statute
in 1978 that has effectively allowed
prosecutors the sole discretion to
send children directly into the adult
court system. Florida’s “direct file”
statute allows youth as young as 146,7
to be sentenced to adult sanctions,
including probation, jail and prisons
with no judicial review or approval.8
Florida also leads the nation in
transferring youth to adult court.9
Over the past five years, more than
10,000 youth have been tried as
adults in Florida, 98 percent of
whom have been sent into the adult
system via direct file.10
On its face, deploying such punitive
approaches might be defended as an
effective public safety strategy; that is,
if it worked. But it doesn’t work.
The Ineffectiveness
of Youth Transfer
Transferring youth to adult court
has not been proved to deter crime,
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The Journal of The James Madison Institute
and in fact, makes the young offendchildren to be prosecuted as adults
er more violent.11 Youth sent to the
insist, despite the facts, that children
adult criminal justice system
transferred to the adult court system
were 34 percent more likely to be
are the “worst of the worst.” In fact,
rearrested for felonies than youth
because the decision to prosecute
who had been retained in the
a child as an adult, in 98 percent
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juvenile justice system. Juvenile
of cases, is made unilaterally by a
offenders, because of immaturity
state attorney who works within a
and developmental
single judicial circuit,
differences, are already
where a child lives has
“Over the past five
less likely than adults
much more to do with
to think about the
the outcome than what
years, more than
consequences of their
he or she has done to
10,000
youth
have
actions—and almost
determine whether
certainly do not considhe or she will be tried
been tried as adults
er the details of Florida
as an adult. A child
in Florida,
law.
prosecuted as an adult
Of those youth who
might have been treated
98 percent of
do not reoffend, they
very differently had he
whom have been
still face a difficult
or she lived on the other
road, including lifetime
side of a county line.
sent into the
Moreover, in each of
barriers to employment,
adult
system
education, housing and
the past five years, the
even driving privileges.
majority of the children
via direct file.”
Adult convictions carry
transferred to adult
the same collateral
court were charged with
non-violent offenses. Between 2008
consequences that they would for
someone over the age of 18.13 Once
and 2013, burglary accounted for
convicted as an adult felon, a youth
the single largest number of cases
may find it difficult to find a job,
of youth transferred to adult court,
and may be barred from educamaking up almost a third of all
tional financial aid for postsecondary
cases.15 Property felonies in general
14
education. With rare exception, the
made up almost 40 percent of all
vast majority of youth will return to
cases transferred.16
our communities. It is in the public
In a 2014 report titled, “Branded
for Life, Florida’s Prosecution
interest to ensure all justice-involved
youth are engaged in rehabilitative
of Children As Adults Under Its
‘Direct File’ Statute,” Human Rights
strategies proven to reduce the real
human and economic costs of future
Watch documented such cases like
crime.
Oliver, who was 16 when he stole
two laptops, a BlackBerry, a PalmPiThe Worst of the Worst?
lot and $8 in cash from an empty
office at his high school; or Matthew,
Proponents of policies that allow
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17, who removed a printer from a
screen porch and then left it by the
side of the house.17 Both of these
youth experienced the confusing
and arbitrary nature of the process
of direct file adult court jurisdiction.
They have also received adult felony
convictions, and perhaps other detrimental scars from their exposure to
the adult criminal courts, including
adult jail time. On any given day, one
can imagine youth accused of similar
offenses are instead handled in the
juvenile justice system. Analysis from Human Rights
Watch also reveals that direct file
is not reserved for those who are
deemed to be the highest risk for
reoffending according to the Florida
Department of Juvenile Justice’s risk
assessment tool.18 In the five years
of data that Human Rights Watch
examined, nearly two of every five
youths directly charged in adult
court were categorized as low- or
moderate-risk to reoffend.19 In fact,
in some judicial circuits, low-risk
youth were transferred at a higher
rate than high-risk offenders.20
two youth accused of the same crime
could have vastly different outcomes
merely based on the circuit in which
they were prosecuted.
Defense attorneys have compared
the process to a “football game with
no referee.”23 Because Florida’s
Direct File statute gives the prosecutor the sole discretion to decide
whether to try the case in adult
court,24 the odds are often stacked
against the juvenile defendant from
the start.
Assigned this unfettered authority,
prosecutorial sole discretion can also
result in an erosion of the important
checks and balances in the adversarial criminal justice process. Though
the pressure to plea is present for
both adults and children in the U.S.
criminal justice system,25 the threat
of adult sanctions, which can involve
mandatory minimum sentencing
schemes, often forces youth to take
an unfavorable plea deal, even if the
evidence against them is not solid.
Much of what we assume occurs
across this disjointed framework
comes from observations and limited
trend data.
Unchecked Government
Discretion Results in Disparities
and Erodes Adversarial Process
Each of Florida’s 20 state attorneys’ offices, representing Florida’s
20 judicial circuits, are free to determine their own criteria and practices
for making direct file determinations, and the practices vary widely.21
In fact, research by Human Rights
Watch found that no two circuits
were the same.22 This means that
The Deficiencies of the Adult
System for Youth
A child charged as an adult in
Florida is treated as an adult for all
purposes — including detention in
adult jails while awaiting trial.26 This
means that even if the youth is later
acquitted of the charge, they have
been exposed to the dangers of the
adult criminal justice environment
and denied access to developmentally appropriate features of the juvenile
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justice system like education.27
There is voluminous evidence of
effective specialized strategies for
reducing youth recidivism including
individual counseling, interpersonal
skills training, and mental health
treatment, as well as family therapy.
These types of programs are a key
part of the juvenile justice system,
but are missing from the adult criminal justice system.
What Florida Can Do
As an ongoing challenge, it is a
public safety imperative to increase
public awareness on the evidence
of what works for handling youth.
While the number of juvenile
transfers to the adult system has
decreased 50 percent over the past
five years, the overall juvenile crime
rate has declined as well.28 In FY
2013-2014, Florida still sent more
than 1,300 youth into the adult
criminal court system. To encourage
continuing declines, there are also
important policy changes to consider
going forward:
£Delete s. 985.557, Florida Statutes,
(the direct file statute) and instead
rely on the existing judicial waiver
statute, s. 985.556, which still
ensures the authority of a judge,
after an adversarial hearing, to make
the decision regarding whether to
try a youth in adult court.
£Stop pretrial confinement of youth
in adult jails and allow all youth
awaiting trial, even if charged as an
adult, to remain in the custody of
the Department of Juvenile Justice.
£Review the offenses that would
make a youth eligible for transfer
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to adult court. Limit qualifying
offenses to those who are violent,
or for repeat offenders.
£Prohibit mandatory minimums
from applying to youth who have
been charged as adults.
£Capture, measure and review all
data related to sending youth to
the adult criminal court. In the
current framework, very little is
actually known about precisely
who, how and why children are
transferred to the adult system. A
deliberate effort to collect more
standardized data across Florida’s
20 Judicial Circuits at this key decision making point would be a step
toward better policymaking.
Florida must continue, as much
as possible, to structure policies
and practices that recognize the
fundamental developmental challenges — and opportunities — of youth
involved in crime and delinquency.
From a purely pragmatic perspective,
we know what works to rehabilitate
court-involved youth. Few of the
effective interventions that characterize the juvenile justice system
are available for children in the
adult criminal justice system. Public
safety is not enhanced, but is only
compromised when we put a child
in a system that increases his or her
likelihood of reoffending. e
Deborah Brodsky is Director of The
Florida State University Project on
Accountable Justice.
1
ENDNOTES
For a more thorough discussion, see the MacArthur
Foundation Research Network on Adolescent
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The Journal of The James Madison Institute
Development and Juvenile Justice, at www.adjj.
org/content/about_us.php.
2
See Haberman, Clyde, “When Youth Violence
Spurred Superpredator Fear.,” New York
Times, April 2014, accessed at www.nytimes.
com/2014/04/07/us/politics/killing-on-busrecalls-superpredator-threat-of-90s.html?_r=0
on February 23, 2015.
3
Office of Juvenile Justice and Delinquency Prevention, National Center for Juvenile Justice,
“Juvenile Arrest Rates by Offense, Sex, and
Race (1980-2010)”, accessed at www.ojjdp.gov/
ojstatbb/crime/excel/jar_2010.xls on February 23, 2015.
4
See Becker, Elizabeth, “As Ex-Theorist on Young
‘Superpredators’, Bush Aide Has Regrets,” New
York Times, February 9, 2001, accessed at www.
nytimes.com/2001/02/09/us/as-ex-theorist-onyoung-superpredators-bush-aide-has-regrets.
html, on February 23, 2015.
5
Redding, Richard, “Juvenile Transfer Laws: An
Effective Deterrent to Delinquency?” Office of
Juvenile Justice and Delinquency Prevention,
2010), accessed at www.ncjrs.gov/pdffiles1/
ojjdp/220595.pdf.
6
14-year-olds in Florida can be charged as adults
for arson; sexual battery; robbery; kidnapping; aggravated child abuse; aggravated assault; aggravated stalking; murder;
manslaughter; unlawful throwing, placing,
or discharging of a destructive device or
bomb; armed burglary and related offenses;
aggravated battery; any lewd or lascivious
offense committed upon or in the presence of
a person less than 16 years of age; carrying,
displaying, using, threatening, or attempting
to use a weapon or firearm during the commission of a felony; grand theft; possessing or
discharging any weapon or firearm on school
property; home invasion robbery; carjacking;
and grand theft of a motor vehicle, see: s.
985.557, Florida Statutes.
7
Youth of any age can be indicted for a capital
felony under Florida law, see s.985.56, Florida
Statutes.
8
Florida law already provides a mechanism for
judges to decide which cases go to adult court,
however, direct file circumvents judicial review
or oversight of the process, see ss. 985.556 and
985.557, Florida Statutes.
9
In a number of states, someone is considered an
“adult” for criminal purposes at age 17. When
these states are not considered, Florida transfers more youth than any other state.
10
Human Rights Watch, “Branded for Life,
Florida’s Prosecution of Children As Adults
Under Its ‘Direct File’ Statute” April 2014,
accessed at www.hrw.org/sites/default/files/
reports/us0414_ForUpload%202.pdf on February 23, 2015.
11
See: Centers for Disease Control, “Effects on
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Violence of Laws and Policies Facilitating the
Transfer of Youth From the Juvenile to the
Adult Criminal Justice System” 2007, accessed
at www.cdc.gov/mmwr/PDF/rr/rr5609.pdf; and
Redding, Richard, “Juvenile Transfer Laws:
An Effective Deterrent to Delinquency?”,
2010, accessed at www.ncjrs.gov/pdffiles1/
ojjdp/220595.pdf.
Id.
See Legal Action Center, “After Prison; Roadblocks to Reentry; A Report On State Legal
Barriers Facing People With Criminal Records,” 2004.
14
Patricia Allard and Malcom Young, Prosecuting Juveniles in Adult Court: Perspectives for
Policymakers and Practitioners, 2002.
15
Human Rights Watch “Branded for Life, Florida’s
Prosecution of Children As Adults Under Its
‘Direct File’ Statute.” April 2014, accessed at
www.hrw.org/sites/default/files/reports/us0414_
ForUpload%202.pdf.
16
Id.
17
Id.
18
Id. See Also The Florida Department of Juvenile
Justice “Positive Achievement Tool,” www.djj.
state.fl.us/dpcs/partners-providers-staff/cpactpre-screen-assessment.pdf?sfvrsn=10 (accessed
January 20, 2015).
19
Id.
20
The 1st, 3rd, 4th, 15th, 17th, and 18th circuits all
transferred more low-risk youth than high-risk
youth via direct file between 2008 and 2013.
See Human Rights Watch “Branded for Life;
Florida’s Prosecution of Children as Adults Under Its ‘Direct File’ Statute,” at p 28, Figure 3.
21
Human Rights Watch “Branded for Life, Florida’s
Prosecution of Children As Adults Under Its
“Direct File” Statute.” April 2014, accessed at
www.hrw.org/sites/default/files/reports/us0414_
ForUpload%202.pdf.
22
Id.
23
Id.
24
s.985.557, Florida Statutes.
25
Human Rights Watch, An Offer You Can’t Refuse:
How US Federal Prosecutors Force Drug Defendants to Please Guilty, December 5, 2013.
26
S.985.557, Florida Statutes.
27
Human Rights Watch, Branded For Life, April
2014.
28
In Florida, Juvenile crime has decreased
40 percent, while transfers to adult court have
decreased 50 percent. Still, in 2013-14, 1300
youth were sent to the adult court system — the
highest number by any state in the nation. See:
2013-14 Florida Department of Juvenile Justice
Delinquency Profile at www.djj.state.fl.us/
research/delinquency-data/delinquency-profiledashboard and “Jurisdictional Boundaries:
Transfer Trends,” Juvenile Justice Geography,
Policy, Practice, and Statistics, at www.jjgps.org/
jurisdictional-boundaries.
12
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