Ava was convicted of a DUI when she was 17 and was sentenced to three years of probation after being prosecuted as an adult in Florida—a legal process that she hardly understood, by her own account. Those prosecuted as juveniles can have their records expunged for such crimes, but even after serving the sentence, the childhood mistake has followed her, making it difficult to establish the basics of a productive adult life.
“I didn’t know how hard it was gonna be to try and find a job, or to try and have a life, to try and get an apartment, a car, anything. I didn’t know that you couldn’t do any of these things if you have a record,” she told Human Rights Watch.
“I need to start over, I need to show people, look, I’m capable of doing things and that I’m not the same person I was, and I’m not gonna keep making those dumb decisions.”
Thousands of kids are in the same boat, marked early as failures through what can in many cases amount to youthful indiscretions. Unlike the juvenile system, adult convictions stay with the child forever, labeling them convicted felons for life—which is why Human Rights Watch didn’t release Ava’s last name, or the full identifications of most of the nonviolent offenders they are working to improve protections for.
Florida’s treatment of minor offenders is considered the worst in the nation, according to experts at the Southern Poverty Law Center, an advocacy group. That’s because the state operates under the system of direct file, in which the prosecutor makes the sole decision whether to charge children as adults or juveniles.
“Unlike most states, Florida has no mechanism on the juvenile or adult side for the judge to review the prosecutor’s decision and keep or send the case back to juvenile court,” Tania Galloni, managing attorney for the Southern Poverty Law Center, told TakePart.
A new bill sent to the Senate this month aims to keep more children in the juvenile justice system by putting the power back in judges’ hands. During an adversarial hearing, the judge would make the final call after hearing from both the defense and the prosecution, taking into consideration the seriousness of the crime and the individual’s personality and history.
As it stands, trying children as adults isn’t reserved for only heinous violent crimes. Sixty percent of minors transferred to adult courts in Florida were tried for nonviolent crimes, such as theft and drug-related instances, in 2012 and 2013, according to an HRW 2014 report. Even repeat offenders for misdemeanors can be tried as adults, which means harsh sentences for petty theft and breaking and entering.
Fifteen other states allow for some form of direct file at the prosecutor’s discretion, but Florida transfers more children to the adult system than any other state. Approximately 2,420 juveniles are transferred to adult courts each year. That translates to close to 4 percent of kids charged with crimes being tried as adults, HRW reports.
Florida’s rate is so high in large part because the court allows for children 16 and older to be charged as a criminal for any offense, according to the U.S. Department of Justice. Vermont, Nebraska, and Wyoming have similar laws, but Florida goes one step further by lowering the age to 14 for murder and a variety of other offenses relating to drugs, property, and weapons.
But treating kids like adults doesn’t work. “The irony is that trying kids as adults actually leads to more recidivism—kids are more likely to re-offend and with more serious crimes,” said Galloni. Half of juveniles who were convicted as adults went on to be repeat offenders, while 35 percent stayed in the juvenile system, according to a 2002 survey.
Backsliding into past behaviors after release from adult facilities is more prevalent as they don’t offer assistance. “In the Juvenile justice system youth receive transition and wraparound services, yet when youth are released from the adult system, there are no services, just supervision,” Cathy Craig-Myers, a spokesperson for the Florida Juvenile Justice Association, told TakePart.
Prosecutors often favor direct file because they have a vested stake in transferring children to the adult system. “Prosecutors like to tout being ‘tough on crime,’ ” Galloni explained, with longer sentences readily available in adult court.
When it appears as though the case isn’t going their way, prosecutors often use the threat of adult court as a bargaining chip to force defendants into false confessions, advocates say. A guilty plea can keep minors in juvenile court instead of risking a trial by jury and possibly harsher sentences if they refuse to cooperate.
Another HRW study subject, Oliver B., who was charged with stealing two laptop computers as a 16-year-old, was presented with such an option. But determined to prove his innocence, he declined and found himself in adult court looking at more than a decade of prison time if convicted.
Oliver eventually accepted a plea deal of three years of probation in adult court. “If I would have let a jury decide my fate I would have gotten 11 to 15 years in prison, so I chose to be…a felon at 16,” Oliver told HRW. “What happened to me was unfair. I am afraid to leave my home in fear that anything will land me in prison.”
To make matters worse, since the decision is solely up to prosecutors, their own biases come into play. Boys receive the brunt of the punishment; they are 13 times more likely to be charged as adults than girls, HRW’s research found. Boys of color are also disproportionately impacted, making up 51 percent of the transfers to adult court even though they only account for 27 percent of the arrests.
No one is saying these kids should get a free pass but instead spend time in accommodations that prioritize rehabilitation over punishment. “Juvenile justice facilities routinely provide highly specialized substance abuse, mental health, and sex offender treatment, as opposed to adult correctional facilities, which primarily provide ‘three hots and a cot’ and no substantive treatment or rehabilitation,” said Craig-Myers.
The family, prosecutor, and defendant come together to determine the best course of action that will allow the child to grow beyond his or her past infractions. Juvenile records are sealed after their sentence is served, allowing young adults to apply for jobs or entrance to universities without disclosing a criminal past.
“The fact is that kids are works in progress; their brains are still developing,” said Galloni, noting the possibilities for reform in children. “So if instead of doing what appears ‘tough,’ [prosecutors] actually followed what works, we’d all be better off.”