Colorado’s policy of sending some juvenile to adult prisons (called "direct file") must be reformed. I spent nearly five years researching the topic for “Direct Fail," published in our December 2011 issue, and here’s some of what I learned:
In Colorado, District Attorneys have unilateral power to prosecute kids as adults. There are no checks and balances. No judge or jury weigh in. There is no way to reverse the DA’s decision. The kicker? Colorado is one of only seven states to have a punitive system like this.
What, exactly, does that mean? Say you have a 16-year-old son who gets in trouble. You sit down with a DA who tells you that they are sending your child to adult court unless you accept a plea bargain. If sentenced in adult court, your son goes to a prison where he can, theoretically, be placed in the same cell as a 40-year-old sex offender. You want your child to be tried in juvenile court? Too bad. The DA makes this decision, and doesn’t have to OK it with anyone, not even a judge.
The DA’s omnipotent power in this scenario scares me. And it should scare you too.
Last week, I sat in a House judiciary committee hearing as DAs, politicians, and community activists bickered over HB 1271, a bill that would, among other things, require a judicial hearing in direct file cases. In short, DAs would have to present an argument about why a child needs to be tried—and sentenced—in an adult court in a hearing. The bill easily passed the committee (9-2).
Soon, the bill will make it to the House floor, and I’m concerned that much of the debate will focus on issues presented in Suthers’ opinion piece or the Post’s brief editorial. The latter suggests that since Colorado amended some aspects of direct file in 2010, it is too soon to revisit the topic. But why shouldn’t we look at our political and judicial programs annually, especially ones that may be (or are) flawed? Why wouldn’t we address whether our criminal system is working on a regular basis?
The Post also applauds DAs for using direct file on a more limited basis. On this, we can (slightly) agree. This is a commendable achievement, especially because “most direct filed kids never get a trial; many juveniles take plea bargains instead. Less than five percent of all direct file cases since 1999 have gone to a jury.” Is that justice, even if the numbers have gone down?
Some legislators will argue that juvenile crime has dropped since 1993 as a result of direct file. However, there is little to no evidence that the crime rate has sunk because of direct file. In fact, crime has fallen across the country—even in states without a direct file policy. The direct-filed youth I have interviewed rarely knew about Colorado’s direct file policy at the time of their crime (listen to Trevor Jones talk about being direct filed here), so how could the law be a deterrant?
Law enforcement officials are likely to tell stories about the worst-of-the-worst cases. It’s difficult to listen to these stories, knowing that the victim’s families are our neighbors and friends. These are horrible, keep-you-up-at-night crimes committed by children who act like adults. These crimes leave us with a difficult question: What do we do with these kids?
There is a simple answer. HB-1271 still allows extreme cases to move to adult court. It simply asks that an elected DA present their reasons for direct filing on a child in a judicial hearing—in front of a judge. Why wouldn’t a DA want a second opinion? Why don't we trust judges? Why are DAs so against transparency? HB-1271 is a tough-on-crime solution, but it does not sacrifice the rights of the accused.
Democracy isn’t pretty. It can be laborious, and checks and balances are time-consuming. That's the very idea this country—the Constitution—is based on. It may take time, but isn’t it more important to get things, like juvenile justice, right?