By Carlos J. Martinez
March 11, 2015
More than 20 years ago, during a wave of highly publicized tourist murders, Florida enacted laws giving prosecutors the power to remove children from juvenile court and send them to adult court without a court hearing.
These “direct file” laws turn a teenager into an adult without judicial consideration of that child’s intellectual, moral or cognitive capacity, or the child’s amenability to treatment and rehabilitation. Before direct file, a child could be tried as an adult, but only after a judicial hearing or indictment by a grand jury.
Floridians were sold on the idea that getting tough on juvenile offenders would make everyone safer and deter young offenders from committing crime. However, there has not been a single study that shows that direct filing reduces crime. To the contrary, numerous studies conclude that direct-filed youth re-offend sooner and more violently than their similarly matched counterparts who remain in the juvenile system.
Children do not have the same decision-making abilities as adults. Children, particularly teens, are wired for impulsiveness, thrill seeking and peer approval. They biologically have less executive function because their frontal lobe, the brain’s planning region, is not mature. That’s why we have laws restricting children from entering into contracts, from voting and even smoking. But children’s innate lack of formation means they have an increased capacity to change and reform.
Yet, Florida ignores that reality.
One key issue is, Where will we place our developing teens — in a prison environment with hardened adults or in a secure juvenile facility with education, services and appropriate adult role models? And, who should make that decision — impartial judges or prosecutors?
In arguing against changing direct-file laws, prosecutors point to a drop in direct files.
This drop corresponds to reductions in overall crime. Even the 35 states that do not direct file are experiencing record lows of juvenile and adult crime. Prosecutors also say that they only transfer the worst of the worst. But studies show 60 percent were direct filed for nonviolent offenses, and there is disparate treatment of children and high rates of incarceration in some parts of the state.
In some Florida counties, the prosecutors use the threat or possibility of transfer to adult court to force children into juvenile commitment programs. To avoid the transfer, the children are forced to decide on plea bargains in juvenile court without having access to the evidence (discovery), without the names of witnesses, with no opportunity to question the witnesses, no testing of the evidence (e.g., fingerprints, DNA), no opportunity to challenge any possible constitutional violations and without a trial.
Judges do not decide the child’s sentence, prosecutors do. Unlike all other juvenile cases, the prosecutor and not the Department of Juvenile Justice determine the most appropriate placement for that particular child. In essence, the child has to give up every constitutional and statutory right to avoid adult court.
The children who want their day in court are filed into adult court where they face terms in prison, where sexual and other abuse can occur. Apparently, a child is not the “worst” as long as the child pleads guilty immediately and gives up all due-process rights.
Unchecked government power over our children undermine basic American values —due process of law, equal justice under law and checks and balances on government power. The level of due process a child receives should not depend on where that child lives. The prosecutor’s unchecked power makes a mockery of the adversarial system, and exacerbates distrust and disdain for our justice system.
We can do better this year. Several bills have been filed to reform Florida’s “direct file” system. Join me in urging the Legislature to place a minimum age for children who can be indicted, eliminate or curtail direct files and instead require judicial hearings, prohibit children with mental illness or developmental disabilities to be charged as adults, establish more uniformity throughout state and house all children in juvenile detention centers before trial and not in adult jails. Additional information is available at www.noplaceforachild.com.
CARLOS J. MARTINEZ IS THE MIAMI-DADE COUNTY PUBLIC DEFENDER.