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

In the decades since, juvenile justice changed, evolved, and, depending on the perspective, regressed in response to social and political pressures of the times. In 1923, Colorado passed a “direct file” law, which empowered prosecutors to try some children, the worst of the worst, as adults in the criminal court. Just about every year since then Colorado has amended direct file protocol—not overnight, but more of an erosion, and ultimately such that prosecutors needed to justify to a judge why a juvenile offender did not deserve the protections of the juvenile system and ought to be transferred to adult court. This careful deliberation was very much a move back to the future of juvenile justice as it was originally conceived.

By the late 1980s, however, DAs complained that judges weren’t approving these transfers, or weren’t doing enough of them to appease the prosecutors. In part, some judges were concerned about mandatory sentencing requirements passed in 1985 that doubled, almost overnight, mandatory minimum and maximum sentencing guidelines. Crimes that used to get one or two years in prison now got three or four, and so on. The “mandatory” part, of course, precluded judges from amending a sentence based on someone’s age, personal background, or circumstances of the crime. What if, on second thought, after all the evidence was heard, a judge was convinced the child-defendant needed mental-health services along with jail time, or perhaps instead of jail time? Or, what about a kid who kills an abusive parent in self-defense? And so on. There were just too many what ifs. And so, judges indeed were reticent to approve transfers. Then again, what if there was a crime, or were crimes, so horrific, perpetrated by kids, that judges—especially judges in politically charged municipalities—shelved all those other what ifs?

There are certain cases that change the way a community—even a nation—thinks, like New York City’s Central Park jogger. On April 19, 1989, Trisha Meili, a 28-year-old investment banker with Salomon Brothers, was running in the park when she was assaulted and raped. Her battered body was discovered about four hours later. By then, she was suffering from hypothermia. Her numerous injuries included a skull fracture. Her recovery languished as the police picked up a group of teens for questioning. In an unusual move, their names were released before they were charged (typically juvenile names are withheld unless a child is charged in adult court). Five teens—four of whom confessed—were convicted a year later.

The crime was horrific, but the idea that teens—children—could do something like this was morally, logically, and scientifically incomprehensible. The case set the stage for a legal shift in the early 1990s where children became juveniles, retribution replaced rehabilitation as a catch phrase, and juvenile programs became “corrections.” During this period, nearly every state enacted legislation that favored punishment over prevention. Like most things, this shift in juvenile justice took awhile to reach Colorado. But when it did, it had gained momentum.

The Centennial State had plenty of cases like the Central Park jogger one—all involving teens. Most notably, there was the case of William James Bresnahan Jr., who beat and stabbed his parents on a family camping trip. And Richard Mijares, who shot his mother and buried her in a shallow grave. The list goes on. In Colorado, guns were part of the problem: These crimes became more lethal in the 1980s and 1990s. Between 1983 and 1993, murders increased by 25 percent and arrests of juveniles charged with violent crimes increased by 75 percent. There were all kinds of theories, reasoned and otherwise. Some said the violence was caused by rap, heavy metal, or violent movies. Others blamed West Coast gangs; the Bloods had settled in north Park Hill. And while Denver had a long history of gangs, they’d always been more of the homegrown variety. In addition to the Bloods, along came the Crips. These gangs had a network that reached across the country, which scared policy-makers who couldn’t figure out a cause or a solution to the apparent violent crime wave.

During the summer of 1993, it seemed like the violence was escalating on a daily basis. One day at the Denver Zoo a toddler was shot in the head. In another instance, a three-year-old was shot in the arm. Each day seemed to bring more news of bloodshed and death; the local media dubbed the apparent crime wave the Summer of Violence. Parents, politicians, pretty much the entire population was spooked. The violence seemed so random, victims so young. Kids were dying, but increasingly, kids were also killing. Denver’s DA, Bill Ritter, and other prosecutors took their worries to Governor Roy Romer, an attorney and father of seven. He agreed that something had to be done, and that the juvenile courts weren’t doing their job. He called the legislators back from summer vacation for a special 10-day session. In the end, 11 laws were passed and some redefined how Colorado treated juveniles. Suddenly, the Division of Youth Services became the Division of Youth Corrections—an ostensibly subtle, yet unmistakable sign that the philosophy regarding juvenile offenders had changed. The old 1923 strategy of direct file was once again passed into law.

Direct file became a fast lane to adult prison without the two-day transfer hearings and judges to consider the prosecutor’s request. After the Summer of Violence, it was the DAs who decided whether a 14-year-old was a child or an adult. The strange thing about Colorado’s new direct file statute was that there was no option to send an offender back to juvenile court. Until 2010, the DAs had no criteria to consider before charging a juvenile as an adult. But even now there is no system of checks and balances to evaluate how thoughtful prosecutors really are. More often than not, they do not have to explain their decision to a court of law. The decision to direct file was—and is—theirs alone. The DA not only chooses the charge, but also the venue (juvenile or adult court). A juvenile’s records are no longer sealed, sentences are harsher, and opportunities for mental-health services are nowhere near the same as those made available in the juvenile system. It is the only decision in which a DA does not have to prove his or her case in front of a judge or jury. (Even in death-penalty cases, a DA can decide to pursue the sentence, but a jury ultimately decides the offender’s fate.)