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

Shortly after Mijares arrived, a prisoner approached him in the shower because he thought Mijares was “cute.” Mijares got away. A few days later, while watching TV, a fight broke out in the common room and everyone scattered. He was just happy to be alone, and he reached up to change the channel to Magnum, P.I. when he felt someone behind him—the same prisoner who’d tried to assault him in the shower—and turned in enough time so that the shank buried in his arm.

In the basement of the Capitol, a crowd of more than 50 people crammed in a room that seemed built to hold far less. In the hallway, a group of tan, silver-haired DAs waited, looking like models on a Rogaine casting call. They were all there because Representative Claire Levy, a Boulder Democrat who had worked as a public defender and civil trial lawyer, had introduced House Bill 1208. The bill would, among other minute points, raise the age at which a juvenile could be direct filed in adult court from 14 (John Caudle) to 16 (Gary Flakes).

It was 2008. By then, transfer hearings were virtually extinct. On the books, a transfer hearing for a kid before a judge was still an option, but it was hard to find a defender or prosecutor who’d done one. Direct file had replaced it. Stories about cases like Caudle and Flakes had drawn attention, and not the good kind. There was talk. Lots of talk. Along came “When Kids Get Life,” a PBS Frontline investigation of Colorado’s juvenile offenders stuck in adult prison, which featured Jacob Ind. Under the media spotlight, it seemed like it might be time to get rid of—or at least modify—direct file, and so HB 1208 was the subject of debate in Colorado’s House Judiciary Committee.

Raising the age requirement for direct file eligibility, to some, was a modest tweak to the law. Then again, there were people gathered in the basement room who believed HB 1208 was about more than age groups; prosecutors who were advocates of direct file regarded the bill as a potential wrecking ball to the justice system. Witnesses began to testify. Dr. Delbert Elliott of the University of Colorado’s Center for the Study and Prevention of Violence took a seat in front of the panel. He spoke concisely for three minutes, trying to create a picture of youth violence in Colorado. John Riley, former director of the Platte Valley Youth Services Center in Greeley and a veteran of the juvenile justice system, took his place. “When I came into the system 30 years ago, children were children,” Riley said. “Children didn’t change; our fear of them did…. We stopped treating them like children.”

The DAs got their chance to talk about the worst cases, the ones that kept them up at night. The ones that showed how horrific children can be. They focused on the “hard cases” and explained that every state has some measure that allows these offenders to be handled in adult courts. They didn’t focus on the fact that many states didn’t have direct file at all, but relied on transfer hearings. Or that most other states had ways to appeal the court’s or DA’s decision to try a child in criminal court. John Suthers, the state’s attorney general, asserted that direct file actually helped curb youth violence in the state, emphatically saying that “since 1993, juvenile crime has decreased significantly.”

But, the other side argued, if direct file is the reason, why has juvenile crime decreased in states that don’t have direct file? Like a pendulum, the crowd’s mood swung with each witness. The committee, divided on the issue itself, asked for statistics—any concrete data—about Colorado. But there was no complete national or local data available on minors prosecuted in adult courts.

The bill narrowly passed the committee and moved to the state House where the issue wasn’t partisan, but rather decided on whether a representative’s constituency was tough on crime at that moment. Concessions were made and wording was reworked. On March 7, 2008, a representative from the Western Slope pantomimed a vicious murder, while others pontificated on the rushed nature of the Summer of Violence legislation. The bill passed by a slim margin, and then passed in the Senate. Finally, it landed on the desk of Governor Bill Ritter, the former Denver DA. In response to the media attention, Ritter had created a Colorado Commission on Criminal and Juvenile Justice, a body of 26 members that would review Colorado’s criminal justice system. He renewed the Juvenile Clemency Board with specific plans to review cases of juveniles sentenced to life without parole. But the moves were largely empty gestures. There was no money to fund changes.

During his four years as governor, Ritter vetoed between four and eight bills a year, including a database for interior designers and something about electricians’ apprentices. He vetoed many fewer bills than his predecessor, but Democrats had control of both the House and the Senate, so signing bills into law was de facto. But he vetoed HB 1208. His view was that DAs were using direct file sparingly and he was not convinced the current system wasn’t working. Really, his veto did not come as much of a surprise, as he’d made it clear on the campaign trail that he wasn’t willing to consider an overhaul of direct file: “You’d have to undo the entire juvenile sentencing structure.”