Prosecuting juveniles as adults has had unintended, and negative, consequences | Opinion

As one of the four Miami-Dade Juvenile Court delinquency judges on the bench in 1994, I clearly recall the sense of urgency that prompted the Florida Legislature to enact the so-called “direct file” law. It gave prosecutors the unilateral discretion to charge juveniles as adults without a hearing before a juvenile court judge, which had been previously required.

Crime and, in particular, juvenile crime had risen by more than 200 percent in the previous decades. Tourists were being carjacked. Crack cocaine sales and shootings were epidemic. Direct filing seemed to represent one tangible firm response. Judges were often too lenient. We needed tough certainty.

Twenty-five years later, there have been two major unexpected circumstances that have caused criminologists, legislators and those of us who work in criminal and juvenile justice to take a second look at the need for the prosecutor’s sole discretion to decide if a child should be prosecuted as an adult.

First, the overall urban violent crime rate in Florida, as well as nationally, has dropped by nearly two thirds since the early ’90s. Although the experts debate the causes, the felony delinquency rate in Florida has also dropped by more than 60 percent. Fortunately, the crisis that precipitated the direct file law no longer exists.

Second, evidence appears to indicate that the direct file law not only played no role in the fortuitous and welcome drop in the delinquency rate, but in fact generated a number of unintended negative consequences that suggest it has hurt the justice system far more than it has helped. These unintended consequences include:

• A failure to attain a demonstrable impact upon on public safety, which was the primary goal of the direct file experiment. The goal was to identify and incarcerate in the adult penal system the most dangerous juveniles. In its 2014 study of the effectiveness of direct files, the prestigious Human Rights Watch Report found that in District XI only 12 percent — one youth out of 10 — of direct filed juveniles were sentenced to jail or prison. The others were released. Other circuits show similar outcomes.
• A failure of the Florida judicial circuits to agree on the criteria for selecting youths for direct file, resulting in enormous diversity among the circuits in transferring children. The 15th Circuit, for example, transfers four times as many youths as the 12th Circuit.
• The data suggest racial disparities in the execution of the direct file function. The Human Rights Watch Report found that while African-American youths constitute 27 percent of arrests statewide, they constitute 51 percent of direct files.
• A particularly objectionable practice has apparently developed as an ancillary to the direct file process: Prosecutors routinely threaten to direct file a youth unless the defense attorney agrees to enter a plea of guilty, waiving any right to contest the charge. The public defender’s office in the 11th Circuit estimates this occurs in as many as 15 percent of felony cases. The youth is unjustifiably denied any right to contest the charge or be direct filed.

There will always be juvenile offenders whose crimes and whose criminal histories require that they be treated as adults and the Florida law has always provided for that process. The involvement of a judge and what was historically termed a waiver hearing, a full hearing with input from both the defense and the prosecution, was the process. It would be once again if direct files did not exist.

It is true that the outcome of that process was never as invariably certain as a direct file. In some cases judges would deny the prosecution’s request to send the juvenile to adult court. But, looking at 25 years of direct file experience, maybe that would be a good thing for our justice system and for our community.

Tom Petersen served as a Miami-Dade circuit court judge in the juvenile division from 1989 to 1999.

This story was originally published April 10, 2019 at 6:59 PM.