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.
This article was a finalist for the 2012 National Magazine Awards in the public interest category . It was also a finalist for a 2012 City and Regional Magazine Award in the civic journalism category .
Sixteen-year-old Gary Flakes didn’t want to go to the police station, but his dad—his namesake, the career soldier—thought it was for the best, and Flakes didn’t want to disappoint him. He’d only been living with his dad in Fort Carson for 19 months; before that, he’d only ever visited his dad for a summer or short stays. He’d grown up with his mom, or as Flakes puts it, his “Moms” in Detroit, but his grades started slipping. He was partying, riding around, and then things got serious: He started dabbling with guns. In August 1995, his mother sent him on a train to Colorado to move in with his dad.
He came to love the mountains, felt a connection to them that he couldn’t explain. The openness. The freedom. It was so different from Detroit where everything—everyone—felt so closed in. In the Motor City, it seemed, nothing changed, at least not for the better: the neighborhood, the people, the problems. Here, though, he could go anywhere. He ran track at Fountain-Fort Carson High School, played basketball at a youth center and for his high school team, too. He picked up a job as a courtesy clerk at Albertson’s. He’d drive to work in his uniform—a white company shirt and blue khaki pants—but he didn’t mind. He was pulling in his own money. He enjoyed being with his dad and helping out his new family; a baby sister was born the day he arrived in Colorado.
Just when it seemed like all was well with Flakes’ new home, it went bad. In the shadow of the Garden of the Gods, he slipped into his old Detroit ways. He got expelled from school in January. Next thing he knew, he was driving around in a white Mazda after a Valentine’s Day dance on February 14, 1997, with a friend, Jeron Grant, who kept talking about getting “something off my chest.” Flakes, who was driving, turned onto Canoe Creek Drive in the affluent Broadmoor area, and passed two boys walking down the street. He drove past, turned around, and pulled up next to them.
Fifteen-year-old Scott Hawrysiak and 13-year-old Andrew Westbay were best friends who’d spent Valentine’s Day night playing video games at a nearby house. Near midnight, they were headed home when Jeron Grant’s white car pulled alongside them. Grant—a total stranger to the boys—got out of the car and shot Westbay in the neck with a 12-gauge shotgun. He was dead before his body slumped to the ground. Hawrysiak turned and started running, but another shot hit him in the back of the head. Grant walked up to him and fired a third blast, which missed. Grant got back into the car, and he and Flakes drove away.
Two innocent middle-schoolers were dead. The Colorado Springs community had no answers. No one to hold responsible. For three weeks detectives logged more than 1,400 hours on the case, tracking down leads, until one Crime Stoppers tip claimed “Jero” and “Flakes” were there. That’s the break the cops—the community—needed. Police showed up at Flakes’ home on March 15, 1997. They asked him some questions and left, but his dad—the good soldier—convinced him it was time to talk.
At the station, a detective asked Flakes if he could tell the story without implicating himself. Flakes’ dad interjected. Should we get an attorney? Near as Flakes can recall, his dad asked this question at least twice. If his dad had said We want an attorney, things would have been different. By law, the conversation would have ended right there. Instead, the detective told them no, they didn’t need an attorney, and Flakes said what he thought they wanted to hear. He knew he wasn’t the shooter, so he told them what he thought would allow him to go home. Instead, the detectives turned him around and placed his wrists in handcuffs, telling him he was under arrest for first-degree murder.
As far as the district attorneys were concerned, this was a worst-of-the-worst case: kids killing kids, and justice would require a tougher sentence than a few years in kiddie jail. So the DAs decided they would try Flakes as an adult. One moment, he was a high school junior who couldn’t legally drink or vote, and the next the state said he was an adult. Prosecutors went with a “direct file”—the nuclear option of juvenile justice.
Jeron Grant confessed that he was the shooter. But at his trial, which preceded Flakes’ day in court, the jury didn’t find Grant’s confession believable. “If you’re going to murder somebody, you’re going to remember every detail,” one juror said. Grant was convicted only as an accessory to the murders, leaving Colorado Springs with two dead boys and still no shooter.
As Flakes’ trial got under way, the Springs was seething to a point just shy of pitchforks. During his three-week-long trial, prosecutors went through the motions. His defense didn’t call many witnesses. The hours dripped by. Yet Flakes remained oblivious. He was just grateful the courtroom was warm. The holding cells were freezing and the bologna sandwiches at lunch left a teenage boy hungry. Even when the conviction came back—two counts of accessory to murder, and one count of criminally negligent homicide—he didn’t get it. He couldn’t understand the consequences of the Valentine’s Day murders. According to the state of Colorado, Flakes—the teenager—was gone. He was an adult on his way to prison for 15 years. He’d be in prison until he was 31. He’d go in a boy and come out a man. At his sentencing, he’d asked—begged, really—the victims’ families to forgive him. “I’m sorry for everything that happened on February 14, 1997,” he said. “I cannot even imagine the love you have lost…. Please forgive me. Find someplace in your heart to please forgive me.”
If you’re looking for a birthplace of the concept of juvenile justice, Chicago is a good place to start. In 1899, it created the nation’s first juvenile court system, predicated on the idea that child offenders are psychologically different than adults and ought to be treated accordingly. It didn’t take long for other states to follow suit: By 1903, Colorado had its own separate juvenile justice system, which ensured parens patriae, the idea that the state treats a child as a parent would. This created an independent system of justice for children that, among other things, ensured anonymity (records would be sealed), encouraged rehabilitation (juvenile detention centers would provide things like educational opportunities and mental-health services), and required judges to consider extenuating factors, like home life and abuse, when adjudicating.
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.)
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.
After school on October 26, 2009, his mom told him to do chores and bring her a Dr. Pepper. When he didn’t—and she didn’t stop bothering him—he went to his room, picked up a family gun he’d hidden there, and shot her in the head. But it didn’t work: She kept screaming and screaming. He shot her again, and again, and again—nine times in total. And then he waited in the laundry room. When his stepfather arrived home and walked past his hiding place, Caudle shot him in the back of the head. He was still alive, so Caudle shot him again, in the head. When he wouldn’t stop breathing, Caudle stuffed ear plugs in his nostrils and drug him to the bedroom, where his mother’s body was. Then he did the laundry, played an online game, and took a shower.
The next morning, he drove his stepfather’s 2008 Chevy Silverado pickup to Monte Vista High School. Later that day, he was picked up for driving erratically in Fairplay. The bodies were found sometime that same day and authorities interrogated Caudle for hours. His maternal grandmother was present, but she spent much of the time crying in a corner. Occasionally, Caudle would hug her and cry himself.
His sentencing hearing lasted only two days. Two specialists were cited as calling his case of child abuse the worst they’d ever seen. The prosecutor didn’t contest that Caudle had post-traumatic stress disorder. Witnesses described how Caudle was abused; one compared his mother to a Nazi prison-camp guard. None of it mattered. Before the judge could sentence him, Caudle accepted a plea bargain sentence: 22 years behind bars.
Could a teenager even understand a plea bargain? Was this battered-person syndrome? Would he receive the services he needed in an adult prison? How could a double-murderer be let off with anything less? Caudle’s case inflamed the direct file debate. DAs in favor of direct file cited it—and still cite it—as an excellent example of why direct file is necessary, while opponents like Dvorchak point to the very same case and say direct file is anathema to the very concept of juvenile justice, and for that matter, justice and due process of any kind. What happens when he gets out—a boy-turned-man in prison? Dvorchak and the DAs made the media rounds, arguing both sides.
Ind’s and Caudle’s cases are just the start, Dvorchak says. She talks about a boy who punched someone at school, received a juvenile court summons, and arrived to find out the DA had filed a “notice of intent to direct file.” (The judge appointed an attorney immediately.) Then there was the 17-year-old who walked away from a juvenile detention center on a field trip and was direct filed for his “escape.” The DAs offered him six years. (An adult who runs from a similar facility might get one or two years.) The charges were eventually dropped, but only after the teenager’s attorney started asking about that sentencing discrepancy.
There are more complicated cases, like the kid who walked into a shop with a nonfunctioning gun. The clerk wasn’t even scared and just told the boy to go home. The teen did. But he continued this behavior—in Boulder, Adams, and Weld counties. When the teen was caught, the DA in Boulder didn’t direct file on him, but the DAs in Adams and Weld counties did. “Most people think direct file is only serious homicides, and that’s actually a pretty small percentage,” Dvorchak explains. “It’s under 20 percent.”
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 jury. In other words, in 95 percent of direct file cases, the DAs choose the charge, venue, and—thanks to mandatory sentencing—the punishment. And all this “due process” is without the input of a judge or jury. “DAs are not direct filing so that they can have jury trials in adult court,” Dvorchak says. “The child has no ability to appeal that. There is no mechanism to test the prosecutor’s choice of putting you in the juvenile court or the adult court.”
Crazy kids. That’s been the refrain for generations, it seems, as adults ponder why perfectly normal children turn into irrational, irresponsible, and irritating teens. Aristotle said teenagers act like drunken men. Mark Twain called them “frivolous” and quipped that teens should be kept in barrels for the duration of adolescence. For parents, it can be a trying time of crashed vehicles, curfew violations, and skipped classes. It’s particularly frightening because, at a time when the consequences of those actions escalate, science says that—empirically—teenagers just don’t understand.
The human brain is almost adult-size at age six. And you don’t need to be a parent to know that a six-year-old does not act like an adult. It takes almost 20 more years for a brain’s function to catch up with its size. During the 1990s, a series of research studies, including a decade-long National Institutes of Health (NIH) project tracked teen minds. The results were shocking: The brain doesn’t evolve or grow like other parts of the body. Instead, certain areas develop over time, like an empty house that is slowly painted, furnished, and lived in. The frontal lobe is the finishing touch, but it might be the most important as it controls planning, suppressing impulses, and understanding consequences.
So it makes sense then, scientific sense, that during the teen years the thirst for risky behavior increases, as kids have not yet developed a mature respect for consequences. And while 17-year-olds commit more crimes than any other age, 80 percent of teen violent offenders do not go on to commit violent crimes in their 20s. In 1993, while this all may have been intuitively obvious, there was little scientific proof. And in this societal ignorance is part of the reason why juvenile offenders’ excuses for their actions often seem feeble, amateurish—juvenile. The research that proves teenagers are psychologically different from adults is so compelling that in 2005 the U.S. Supreme Court declared capital punishment unconstitutional for juveniles.
Where juvenile-detention programs for 17-year-olds are ostensibly rehabilitative, adult prison for 17-year-olds is punitive. “The criminal justice system is incredibly powerful,” explains Christie Donner, director of the advocacy group Colorado Criminal Justice Reform Coalition. “It can pick you up out of your life and put you someplace you don’t want to be. And there’s probably no other system that has that kind of power. Child welfare can’t. Education can’t. This is an enormously powerful system.” And the adult prison system is woefully ill-equipped to receive juvenile offenders.
There is a federal law that requires “sight and sound” separation between juvenile offenders and adult inmates in jail, but it does not apply to children prosecuted as adults. In Colorado, a law requires physical separation, but this, again, doesn’t apply to direct filed youth in prison. Theoretically, a 14-year-old boy could be put in the same cell as a 50-year-old sex offender. Most Colorado jails do not have a pod for juvenile inmates (Adams County does have a makeshift juvenile unit, in a jail). And so, jail and prison officials often have avoided both situations by holding juveniles in solitary confinement.
The practice of isolating a prisoner in solitary confinement is widely regarded to be psychological abuse. (Most of Europe disavowed the practice last century.) Last October, Juan Méndez, the United Nations’ torture expert, said solitary confinement “can amount to torture or cruel, inhuman and degrading treatment or punishment when used as a punishment during pretrial detention, indefinitely, or for a prolonged period for persons with mental disabilities or juveniles.”
Fourteen-year-old John Caudle spent more than a year in solitary confinement waiting for his trial to begin. When he emerged from the box, he was transformed. He was five-foot-11 and 110 pounds, with an Adam’s apple sticking out of his bony neck and a vacant stare. “He was extraordinarily frail,” Dvorchak says. “He looked like a toothpick in chains.” The jail did not provide him with mental-health services. After he was convicted, he was sent right back to solitary confinement. In theory, Caudle was put into solitary for his own protection.
Teenagers make up one percent of the jail population, but 21 percent of inmate-on-inmate substantiated sexual violence is against youth. Even the searches can feel invasive: Strip, open your mouth, raise your arms, show the space between your penis and testicles, and bend over and cough so a guard can inspect your anus. Locked up with adults, kids are also 50 percent more likely to be attacked with a weapon. Most troubling is the estimate that teens are 36 times more likely to commit suicide in adult prisons than in juvenile facilities. Since 2001, two Colorado teens, 17-year-old James Stewart and 17-year-old Robert Borrego, have committed suicide in adult facilities.
Richard Mijares could have been one of those teens. Deputy sheriffs found a noose in the teen’s cell in 1988. It wasn’t the first time Mijares had tried to kill himself.
On March 24, 1988, Mijares shot his mother in the face in their Woodland Park home. They had an argument, and he went downstairs with a gun to think—to see, really, if he had the guts to shoot himself in the head. When his mother, still arguing, came down the stairs, he just pointed the gun at her and squeezed. He wrapped her corpse in a blanket, buried her some 15 miles away, and spent a week pretending she was missing for the cops. It didn’t work; he eventually confessed.
He underwent a psychological evaluation to determine his fitness to stand trial as an adult, but nothing more. He was direct filed but his case never made it to trial. He accepted a plea bargain on June 10, 1988. When the judge asked him why he was pleading guilty, Mijares just shrugged. The judge told him that until he understood his actions, he could only give Mijares the maximum sentence.
We’ll never know what a psychiatrist would have said about Mijares’ mental health when he agreed to a plea bargain. Or how Mijares’ lifetime of abuse impacted his mind on the day of the murder. Mijares says his father would beat his mother while she was pregnant with him, beat her so badly that his older sister would peek under her mom’s dress to make sure he was still in her womb. He recalls a time when he dropped a clean sock on the garage floor and was beaten. His dad drove a Volkswagen Rabbit with a very distinctive engine sound, and when Mijares heard it coming home, he hid. By the time he was 14, he was suicidal, which is around the time his mom finally kicked his father out.
Their new life was quiet, almost too quiet. Their home was so isolated that at night Mijares couldn’t see lights from another residence. His mom suffered from depression and would have little energy for him. She’d go to her nursing job before he woke up and straight to her bedroom when she got home. Mijares would waste his time fishing in the pond or shooting behind the house. Sometimes he would pick fights with her. Sometimes he’d dream about killing himself. That night in the spring of 1988, he shot her instead, ending up in prison with a “mother-killer” reputation.
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.”
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.’”
Juvenile crime rates have plummeted, just as Colorado District Attorneys’ Council’s Tom Raynes and Attorney General John Suthers say. But there is little evidence that direct file discourages youth crime, just as there is little evidence that the threat of the death penalty discourages adults from committing heinous crimes. None of the direct filed offenders interviewed for this story cite direct file as a deterrent for their teenage minds. In truth, many had no idea Colorado sent kids to adult prison.
Advocates like Dvorchak argue that a teenager has little ability to understand the legal consequences of his or her crimes. That instead of rehabilitation, we focus on punishment, which is a mixed message. “Let’s restart the conversation,” Dvorchak says. “It’s not a question of whether two years is not enough. It is a question of why seven years is not enough.” She also questions why, if we believe in a juvenile justice system, we have a legal loophole that contradicts its very premise.
Ritter’s Juvenile Clemency Board and task force was created in 2007 to address questions like this—but nearly five years later, they’ve done little. Governor Romer granted the last pardon in 1987 to William James Bresnahan, who killed his parents on a summer camping trip in Summit County in 1964 as a 16-year-old. After serving 10 years in adult prison, he became a doctor and moved to California.
For other examples of what a juvenile criminal can become and that the notion of rehabilitation of a child has merit, there’s Richard Mijares and Gary Flakes, who are both out of prison, employed, and taking college courses. At 40 and 31, respectively, they are like time capsules. They went in as teens and emerged as men. They missed prom, turning 21, registering to vote, getting married. Many would argue they lost the right to experience those things because of their crimes. Regardless, like so many other prisoners, they eventually left prison—and the world they re-entered is sometimes more daunting than the one they left.
Mijares arrived at his halfway house in February 17, 2000, hopeful that he’d assimilate back into society. He had a little cash saved from selling belt buckles and jewelry he made; his sisters helped out too. He finished his GED inside and even picked up a pair of associate degrees. The few times he was lucky enough to get a job interview, they ended badly. He started to give a rehearsed spiel about his crime that he’d worked on with his therapist and parole officer. Soon, he found out that background checks revealed what he had been charged with—first-degree murder—not what he was convicted of, second-degree murder. That seemed wrong, but he’d work with it. It was what he had to do. One night, he came back to the halfway house and just broke down. Send me back, he told his parole officer. He didn’t know how to live outside of prison anymore.
He finally got a break when a call-center employee went to his boss and vouched for him. He started at $7 per hour and worked whatever shift they’d give him. Six weeks later, they promoted him to a computer job. Two-and-a-half years later, he’s the director of his department. The way he sees it, he may never leave. “Where else would I go?” Mijares asks. He’s got a truck, two houses, two cats, a dog, and he’s taking classes at Metro State, trying to get his B.A. Mainly, he wants to blend in; even his short-sleeved shirt hides the scar on his arm from the prison attack.
Mijares, like Flakes, is now working on direct file reform. Maybe this year will be the year something changes. Maybe not. Regardless, it’s likely that the Legislature will have to deal with Colorado’s direct file policy this session—again. “I don’t know what year is the right year for this to happen,” Maureen Cain says. “You just keep doing it.”
Which is why Flakes is standing at the 5K’s start line, beginning, again. Most of all, he worries about his legacy. “If someone harms your family, you’ve been created to have that anger and do something about it,” Flakes says. “I understand that. I don’t want them to feel anything different than they want.... They got every right—I mean, a right. The legacy that I’m going to leave is going to have to be—and it is going to be—a good one. It’s going to far outweigh this right now, what I’m known for.”
Natasha Gardner is a 5280 senior editor. Email her at [email protected] .