When a juvenile gets caught shoplifting or trespassing or smoking marijuana in Florida, what happens next depends on their ZIP Code.
In some parts of the state, the child is automatically put into a program that diverts first-time offenders from arrest so they can avoid a criminal record that could follow them the rest of their lives. In other areas, however, they face arrest — and a record.
“We don’t think that’s fair,” said Rev. Bernice Powell Jackson, pastor of the First United Church of Tampa and an activist in Hillsborough County. “We don’t think that’s equal justice.”
On Monday, the Florida Senate voted 35-1 to require law enforcement agencies to use pre-arrest diversion programs instead of arresting first-time offenders younger than 18 accused of low-level crimes, including underage drinking, disorderly conduct, theft and battery other than domestic violence.
Without a statewide mandate, children in some parts of the state will continue getting arrest records for first-time offenses, said Sen. Anitere Flores, R-Miami, who sponsored legislation creating the requirement.
“It would be terrible for our children because we would continue to have disparate results in different parts of the state,” she said. “It’s an injustice that would continue to be allowed.”
The Senate tacked the diversion program language onto a bill (HB 301) requiring the Supreme Court to report information to the Legislature, which the House has made a priority.
But the legislation has drawn opposition from powerful criminal justice groups, including the Florida Sheriffs Association and the Florida Prosecuting Attorneys Association, which represents the 20 state attorneys’ offices. They don’t want law enforcement’s hands tied.
“It is extremely important, to protect public safety, that law enforcement have discretion,” said Pinellas County Sheriff Bob Gualtieri, legislative chair of the sheriffs association. “Under this, the cop’s choice is to charge them with a felony or charge them with nothing and the kid walks away.”
Gualtieri says many diverted cases could be felonies but officers instead charge juveniles with misdemeanors. For example, a few weeks ago, some teenagers broke into a middle school, which is technically a felony burglary, he said, but was filed as trespassing. If law enforcement is forced to choose between diversion and a felony, he worries more juveniles will face the more-stringent charges.
South Florida has been quick to adopt civil citations and other diversion programs for juveniles. A study last year suggested Miami-Dade County leads the state in diverting first-time offenders from arrest.
In Miami-Dade, 94 percent of eligible youths were put into a diversion program from March 2016 to February 2017, according to data published by the Department of Juvenile Justice. In Broward, 71 percent were.
However, Gualtieri says the data are “unfiltered, unvetted” and that the numbers don’t accurately reflect the reality in some counties that rely instead on post-arrest diversion programs.
The sheriffs association instead supports legislation that would encourage diversion programs and automatically expunge the records of juveniles who complete post-arrest programs. Those are provisions the House has put forward and that would maintain the discretion of prosecutors, police and sheriff offices.
But activists say that doesn’t go far enough.
Rev. Powell Jackson said she has seen cases where children with expunged records have still had lifelong dreams like joining the military or going to college derailed.
She — along with Senate President Joe Negron — say youthful mistakes should not become a “life sentence.” Treatment and consequences like community service and paying restitution are enough for first-time offenders, she said.
“Ninety-nine percent of us adults did something stupid as kids that could’ve gotten us arrested,” Powell Jackson warns.
Contact Michael Auslen at firstname.lastname@example.org. Follow @MichaelAuslen.