BY KEVIN HUGUELET — If recent history is indicative of future results, then this year Florida’s prosecutors will transfer juveniles into adult court at a higher rate than any other state in the Nation. From 2008 to 2012, over 12,000 Florida children—some as young as 12 years old—were transferred into adult courts. Florida law authorizes three mechanisms for a juvenile to be transferred: grand jury indictment, waiver, or direct file.
Notwithstanding the fact that three mechanisms are available, about 98% of juvenile transfers to adult court are via direct file. Direct file is a statutory provision that allows prosecutors to choose whether a case will be adjudicated in juvenile or adult court. In Florida, direct file is either mandatory—if the juvenile meets certain statutorily enumerated criteria—or discretionary—“when in the state attorney’s judgment and discretion the public interest requires that adult sanctions be considered or imposed.” The decision by a state attorney to use discretion to direct file a child cannot be appealed or reviewed by a judge; the case will simply be filed in adult court and there is nothing the juvenile can do to protest. This process of unfettered prosecutorial power violates the basic tenants of the American adversarial system. Florida state attorneys hold an inordinate amount of power and can coerce children into accepting juvenile plea deals under the threat of long-term adult prison sentences. Further, prosecutors are able to do this before the child has an opportunity for discovery, thus losing the ability to hear any exculpatory or inculpatory evidence or to see a police report. Although a judge in adult court can impose juvenile sanctions in cases of discretionary direct file, there is a presumption that adult sanctions are appropriate because the juvenile is in adult court. Further, once a child has been charged as an adult, they are required to be held pretrial and post-conviction in adult detention facilities.
Recent Supreme Court cases, such as Roper v. Simmons and Graham v. Florida, have signaled a shift in the Court’s position on juvenile justice issues; those decisions have demonstrated an understanding that children are different than adults and are entitled to special protections. Regardless of the Court’s apparent shift, fifteen states—including Florida—still allow prosecutors to transfer juveniles via direct file. Further, three states—including Florida—do not have any reverse waiver provisions that allow a request for judicial review of the decision to direct file. Given the recent developments in the Court, juvenile justice advocates should be able to bring challenges to juvenile transfer laws. It does not overstretch the holdings of Roper and Graham to argue that—given the special status of children—juveniles require an individualized judicial determination. Direct file certainly does not provide this determination.
To make matters worse, Florida’s juvenile transfer laws are largely out of step with international law. The Convention on the Rights of the Child requires that “the best interests of the child shall be a primary consideration” in juvenile proceedings. Clearly, Florida’s discretionary direct file provision, which requires a prosecutor to only consider the “public interest,” violates this Convention. It should be noted that the United States—and by extension Florida—is not bound to follow this treaty because the treaty has been signed but not ratified. However, given the fact that the United States is one of only three countries in the world that has not ratified the treaty—Somalia and South Sudan are the others—perhaps it is time to reconsider the treatment of juveniles in this country.
Proponents of direct file contend that this practice provides efficiency and a tough stance on crime. Judicial economy and sanction posturing, however, are hardly sufficient justifications for moving children en masse from the rehabilitative juvenile courts to the retributive—and public—adult courts. Many claim that detention may be a wakeup call for troubled youth—and this may be the case in some situations—but recent studies have found that detention increases recidivism rates and has other devastating effects on juveniles. This is especially true when juveniles are placed in adult facilities, which are not equipped to handle their special needs. As a society, Florida needs to have a discussion about the purpose of its corrections system; Floridians need to ask themselves whether the system is supposed to rehabilitate its children, or exacerbate their problems and effectively create the criminals that they seek to be protected from. Defenders of direct file may point out that the overall number of direct file cases was cut in half from 2008 through 2012. However, that statistic neglects the fact that the total number of juvenile cases has dropped by nearly 34% during that same time period. Supporters may contend that direct file is having its intended deterrence effect; however, a more likely explanation for this development are programs designed to prevent juveniles from entering the justice system in the first place, such as Miami-Dade’s Civil Citation Program.
This article does not intend to suggest that juveniles who commit crimes should not be held accountable or that no juvenile should ever be tried as an adult. Rather, the decision should be taken out of the hands of prosecutors because they are interested stakeholders in the outcome of the case as adversaries of the juveniles. Florida law provides two alternative mechanisms to direct file: waiver and grand jury indictment. Both of these options allow neutral third parties to determine if a child should be charged and tried as an adult. The Florida legislature should repeal discretionary prosecutorial direct file and revise mandatory direct file to include only the most serious offenses, such as murder. At the very least, however, the Florida legislature should pass a reverse waiver provision. If the Florida legislature feels that it is necessary to allow prosecutors to have direct file power, then juveniles should at a minimum be able to challenge that determination. Efficiency should never take precedence over the well being of our children, and the Florida legislature needs to rethink this shortsighted situation that it has created.