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

Maureen Cain, a lawyer and advocate who was a lobbyist for reform at the time, says she’d given Governor Ritter 15 cases to review hoping he would see that the juvenile sentencing structure was, at least in part, being replaced by the adult sentencing structure, and that it was time to reconsider what juvenile justice actually meant. “I gave him a memo, but I don’t think he ever read it…. He was pretty upfront about the fact that he was going to let it happen, even though it ran through the Legislature…. He was too much of a DA to ever break from them.”

On October 15, 2011, Gary Flakes is speaking into a megaphone at the start line of a 5K run. The race is sponsored by Kim Dvorchak’s group, the Colorado Juvenile Defender Coalition. Flakes met Dvorchak when she took on his prison appeals as court-appointed counsel. Now, he’s attending Pikes Peak Community College and working as an outreach assistant at CJDC, where he speaks to families of direct filed teens. He tells them what their sons and brothers are experiencing in prison. He tells them what to expect. He tells them how to hold on.

He’s dressed in long sleeves, black pants, and perfectly polished shoes that stand out in the crowd of sneakers and sweats. “We take kids straight from the streets, and the prosecutors are the ones who have the sole discretion about whether or not those kids are sent to the jail or held in a juvenile facility,” he says into the megaphone. “When a kid should be getting services and counseling and support from their family, they are held in solitary confinement, which is a place of depression, isolation, loneliness, and sometimes leads to suicide.”

This grown-up Flakes—he’s 31 now—has a too-serious look about him most of the time. It’s not that he’s brooding; he just seems uneasy. He’s nervous when people ask questions, not understanding or trusting why they’d be interested in him. He thinks through your motivations before flashing a quick smile. It’s prison that made him cautious, he says. It took years for him to understand why he was inside for so long. There were years he couldn’t stand being around other inmates. Then something changed.

He devoured books. He converted to Islam. He got an education and spent hours in the prison’s library. After serving about five years, Flakes was intent on tracing his entire case. He started at the beginning, asking why he, a 16-year-old, was in adult court in the first place. The answer didn’t add up. Certain crimes are eligible for direct file, like class-one felonies (murder, armed robbery). He was convicted of accessory to murder, which is not eligible for direct file. In short, he was convicted of a crime that, by its very definition, shouldn’t be in adult court.

He filed a pro-se motion on his own behalf, asking the court to address this, well, discrepancy. The case found its way to Dvorchak, a court-appointed attorney at the time, and eventually to the Colorado Supreme Court. The state’s highest court ruled that the original trial judge hadn’t fully documented Flakes’ sentencing. Flakes—now a man—would have a chance to argue in front of a judge that he should have stayed in juvenile court. It was the equivalent of a 10-years-too-late transfer hearing.

Colorado judges do not comment on legislation. Their stance is that judges interpret law; they don’t make it. So they said nothing during the Summer of Violence. They’ve kept silent since then, too. (The Colorado Judicial Department, which speaks on behalf of the state’s 287 trial judges, declined to comment for this story.) In 1993, the DAs argued that judges weren’t willing to transfer kids to adult court. Since then, there have been very few chances to see what a judge would or wouldn’t do.

Nearly every year since 1993, advocates and legislators have worked to undo what happened during that 10-day special session. Sometimes they make headway. Sometimes they don’t, like when then-Governor Bill Ritter vetoed HB 1208 in 2008. Stephanie Villafuerte, Ritter’s former aide and a chief deputy in 1993, is now the executive director of the Rocky Mountain Children’s Law Center and defends the legislation—in part. “I think it was well-intended legislation,” she says. “Today, advocates on both sides are arguing about how much is enough. My job as a prosecutor was to do what was just—not what gets you in papers. At the time we did our job with the law and tools we had. What we knew 25 years ago is different than what we know today. But at no time should people use juvenile justice as a platform.”

Maureen Cain, the attorney and advocate who was a onetime head of Denver’s juvenile defenders, remembers things a little differently, saying that judges then, and now, are more equipped to supervise transfer hearings and to make consistent decisions than DAs, who have to worry about re-election. “The heyday for the DAs was in the ’90s,” she says. “We had money. They could go in and ask for anything they wanted. If they wanted it, they got it, and there was no accountability and no assessment of whether that’s effective. They just said, ‘We’re from the government, trust us.’”