Direct Fail

Welcome to Colorado. One of seven states in the country where district attorneys can unilaterally decide when to criminally prosecute kids as adults.

December 2011

Since 1993, direct file has morphed. Even though transfer hearings are still an option, by 2000 only a handful had occurred. Some DAs said the two-day hearings took too long and made victims relive traumatic events twice—once at the hearing and once at trial. Simultaneously, the crimes eligible for direct file expanded beyond serious charges, like murder. This option was not just for the worst of the worst: It sometimes was used for the “sort of worse,” like teenagers involved in vehicular homicide or aggravated robbery.

On any given night, is it estimated there are 10,000 kids in adult jails in the United States. For years it was unknown exactly how many juveniles were being held in Colorado’s adult facilities because this information wasn’t—and still isn’t—tracked in Denver County. However, excluding Denver County, which is a county with a high number of direct file cases, nearly 30 kids were locked up in adult jails between July 1, 2010, and June 30, 2011. Most are male, but it is estimated that girls make up about seven percent of Colorado’s direct filed youth. Even less is known about the number of juveniles in adult prison, after a conviction or plea has been accepted. What is known is that there were at least 1,810 felony cases in Colorado between 1999 and 2010 where the defendant was under 18 at the time the case was filed.

Now, Colorado finds itself one of only seven states that gives DAs such sweeping autonomy to employ direct file without a transfer-hearing option or a way to send the case back to juvenile court. In 2009, the most recent year for which statistics are available, 28 percent of every 100,000 criminal cases against juveniles in Colorado ended up in adult court. Even Texas, a tough-on-crime state, direct files on a smaller percentage of children than Colorado does. Yet the Colorado District Attorney’s Council estimates that there were about 100 direct file cases last year, a small portion of the nearly 10,000 juvenile cases that occurred.

“The cold facts are as soon as direct file got expanded, the juvenile crime dropped,” says the group’s executive director, Tom Raynes. “I think there is a notion that this direct file authority is used widely and often. It’s used with great discretion.” He cites that, most of the time, DAs believe juveniles should be treated differently, but there are exceptions. In those cases, direct file is necessary. “If someone could point to how the system has failed us or that there have been horrible mistakes made, we’ll listen,” Raynes says. “Let’s look at the facts of the cases. We’re willing to defend those cases.”

Kim Dvorchak is almost always smiling. Blond, tall, and quick-witted, Dvorchak is an attorney and executive director of the nonprofit Colorado Juvenile Defender Coalition, an advocacy group working to put an end to direct file. She and a handful of staff work from a second-story office on Santa Fe Drive that’s next to an auto repair shop and a tattoo parlor. It’s not the place you’d expect—or maybe it is exactly the kind of place—to find an organization that often makes a habit of calling out DAs. The group has been instrumental in chipping away at direct file, with the ultimate goal of abolishing it completely. Dvorchak knows direct file discussions can dissolve into legalese about statutes and due process. To keep things simple, she starts with the worst cases: the ones that involve parricide, when children kill their parents or another relative.

These cases are rare. There are a few dozen in the state’s history, which is miniscule considering a child dies from abuse every 10 days in Colorado. The Pendulum Foundation, a Colorado nonprofit and advocacy group for juvenile justice, estimates that 90 percent of these children had been severely abused. Take, for example, Jacob Ind: On December 17, 1992, the Woodland Park teen murdered his mother and stepfather. Colorado’s Attorney General John Suthers, who was then the DA, direct filed on the 15-year-old, and Ind was sentenced to life without parole, a veritable death sentence. Those are the basic facts, but there are others.

Ind’s older brother, who’d moved out just months before the murders, testified at Ind’s trial that both he and Ind had suffered years of sexual abuse by their stepfather, saying: “He would basically rape us” and “there were many secrets in the house that we didn’t tell people.” Ind’s brother also insisted he finally told a social worker about the problems at the house shortly before the murders (something the social worker didn’t recall). In the weeks before the murders, Ind lost 20 pounds, stopped bathing, and had near-constant panic attacks. After the murders, he showered, caught the bus to Woodland Park High School, where he was a freshman, shot some hoops, and took a pop quiz in his math class. When the cops discovered the bodies later that day, Ind vacillated between rage and sorrow. His biggest concern, which he confessed to his brother, was the tiny bit of marijuana in his bedroom. He didn’t want to get in trouble with the cops.

There are more recent examples, too; the most well-known is John Caudle. The 14-year-old high school freshman lived in Monte Vista in the San Luis Valley, a town of about 4,000 people and the kind of place where everyone knows everyone else, but really don’t seem to know each other at all. To them, Caudle (pronounced “Coddle”) probably seemed like a quiet kid who read books on the bus and had the odd habit of still sucking his thumb. He appeared to be emaciated, with just 98 pounds to stretch over his five-foot-seven-inch frame. At home, he lived with his stepfather and mother. His mom made him carry rocks in the yard for up to 10 hours at a time and often denied him food.