BY KELLY SHAMI – Florida has been the leading state in prosecuting children as adults.[1] Through its “direct file” system, based solely on prosecutorial discretion, Florida has “transferred juveniles into the adult court system nearly two times as often as the state with the second highest transfer rate.”[2] The concept of trying a juvenile as an adult originally came about in an effort to enforce stricter criminal punishments on juveniles in an effort to reduce youth crime rates.[3]
Aside from the proven ineffectiveness of these procedures, trying juveniles as adults goes against well established international legal principles on juvenile justice.[4] However, currently there is discussion about a proposed Florida “Senate Bill (SB) 1082, which would allow judges rather than prosecutors to decide when to prosecute a child as an adult.”[5] This bill, while only a minor step towards compliance with the U.S.’s international human rights treaty obligations, could be a radical move towards better protecting the rights of children in Florida.[6]
As compared to the rest of the international community, the United States seriously lags in the promotion of juvenile justice.[7] Despite its having ratified the International Convention on Civil and Political Rights, and its being a signatory to the Convention on the Rights of the Child, when it comes to the protection of juvenile rights, the U.S. has constantly fell short of protecting the rights contained in these treaties.[8] In addition, its domestic policies concerning juvenile justice are among the harshest in the international community.[9] Florida has led the nation in advocating that juveniles can and should, on certain occasions, be tried as adults.[10]
In the U.S., transfer laws “fall into three general categories: judicial waiver, prosecutor discretion, and statutory exclusion.”[11] Florida currently operates under a “‘direct file’ statute, which allows prosecutors the discretion to move a case from juvenile to adult court without a hearing or any input from a judge.”[12] It is through the utilization of this direct file procedure that Florida has been able to transfer youths to adult court at much higher rates than the rest of the nation.[13] However, there may be some light at the end of the tunnel with the proposed SB 1082.
SB 1082, introduced by State Senator Thad Altman, would replace the direct file process with an adversarial hearing in which a judge makes the final decision about whether a child should be tried as an adult, after considering arguments from both the prosecution and the defense. The proposed law would make children younger than 16 ineligible for prosecution in adult court, and limit the crimes for which children 16 and older could be tried as adults for violent felonies.[14]
While this change may seem insignificant, it has major implications for reducing the number of juveniles tried in adult court in Florida, and ultimately in the U.S.[15] With Florida direct file cases, prosecutors have the power to decide whether or not to transfer a juvenile into adult court. This procedure places almost no limitations or guidelines on the prosecutors when making these determinations. This broad grant of power has been linked to the racial disparities of juveniles transferred to adult court.[16] It has also been subject to certain abuses, such as prosecutors threatening to direct file juveniles in an attempt to coerce the juvenile defendants to accept guilty pleas.[17]
In contrast, with the implementation of the judicial waiver policy proposed by SB 1082, many of these problems can be eliminated. With judicial waiver, a juvenile defendant is entitled to a hearing to determine whether prosecution in the adult system is appropriate.[18] Unlike the criteria, if any, considered under prosecutorial discretion, judicial waiver mandates that the judge examine a set of enumerated conditions before making a determination regarding the transfer.[19] Additionally, the judicial waiver mechanism reduces the potential for abuse. Judicial waiver theoretically gives the juvenile defendants the ability to appeal a judge’s transfer decision, unlike transfer decisions made under prosecutorial discretion.[20] With the addition of the procedural safeguard of appeal comes the reassurement that transfer decisions will not be made on an arbitrary or unjustified basis.
While by no means a perfect alternative, the Florida SB 1082’s proposition of replacing prosecutorial discretion with judicial waiver is a step towards protecting the rights of children.[21] In addition, given Florida’s harsh track record of transferring juveniles into adult criminal courts more than any other state, the switch to judicial waiver will dramatically reduce the number of juveniles transferred to adult courts in the U.S.[22] This will push the United States closer to fulfilling their international human rights treaty obligations of protecting juvenile rights. Finally, implementing Florida’s new policy of judicial waiver will hopefully set the stage for changing similar policies in other states, so that juvenile defendants can have better accommodations to meet their needs throughout the nation’s criminal justice system.
[1] Meredith Clark, Report: Florida leads the nation on charging kids as adults, MSNBC (Apr. 11, 2014), http://www.msnbc.com/msnbc/florida-charging-kids-adults.
[2] Id.
[3] Child or Adult? A Century Long View, Frontline, http://www.pbs.org/wgbh/pages/frontline/shows/juvenile/stats/childadult.html (last visited Feb. 23, 2015).
[4] Michele Deitch Et Al., From Time Out to Hard Time: Young Children in the Adult Criminal Justice System71 (The Univ. of Tex. at Austin 2009), available at http://www.campaignforyouthjustice.org/documents/NR_TimeOut.pdf.
[5] Florida: Limit Prosecuting Children as Adults, Human Rights Watch (Feb. 19, 2015), http://www.hrw.org/news/2015/02/19/florida-limit-prosecuting-children-adults.
[6] Id.
[7] Deitch Et Al., supra note 4, at 71.
[8] Id.
[9] Deitch Et Al., supra note 4, at 71.
[10] Clark, supra note 1.
[11] Jurisdictional boundaries, JJGPS, http://www.jjgps.org/jurisdictional-boundaries (last visited Feb. 23, 2015).
[12] Clark, supra note 1.
[13] Id.
[14] Human Rights Watch, supra note 5.
[15] Id.
[16] Clark, supra note 1.
[17] Id.
[18] Human Rights Watch, supra note 5.
[19] S.B. 1082, 2015 Leg. (Fla. 2015), available at https://www.flsenate.gov/Session/Bill/2015/1082/BillText/Filed/PDF (some criteria examples include the defendant’s age, the severity of the crime, the extent of the child’s participation in the crime, the effect of familial pressure on the child’s actions, and the child’s sophistication, maturity, intellectual capacity, etc.).
[20] Janet E. Ainsworth & The Future of Children, The Court’s Effectiveness in Protecting the Rights of Juveniles in Delinquency Cases, 6 The Juvenile Court 64, 68 (1996).
[21] Human Rights Watch, supra note 5.
[22] Id.
