Prosecuting Youth As Adults Creates Racial Disparities and ‘Justice-By-Geography’

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FullSizeRenderEach year, California prosecutors charge hundreds of youth in the adult criminal justice system through a power called “direct file.” Prosecutors make the decision to direct file behind closed doors without considering a youth’s background, mental health, trauma history, degree of participation in the offense or potential for rehabilitation. Direct file also does not allow for many due process protections — for example, no hearing before a judge and no right to appeal.

Prosecutors in counties across California do not apply direct file based on consistent standards or criteria, leaving the state with an inequitable system of “justice-by-geography.” The use of direct file in California reflects the racial disparities and inequities of the criminal justice system and society at large. Direct file is simply bad policy.

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Recent studies show that youth transferred to the adult system are more likely to recidivate. Rehabilitation services that are mandated in the juvenile justice system are not available to youth who complete their sentences in adult prisons. The collateral consequences of a felony conviction can create barriers to successful reentry into society.

A new report from the Center on Juvenile and Criminal Justice (CJCJ), the National Center for Youth Law and the W. Haywood Burns Institute revealed that direct file also disproportionately affects youth of color in California. While the rate of direct file is decreasing for white youth, it is increasing for African-American and Latino youth. For example, in 2003 black youth were 4.5 times more likely than white youth to be direct filed. By 2014, this figure rose to 11.3 times more likely.

The report also found that county-level disparities have led to an inequitable system of “justice-by-geography” across the state. For example, while Yuba and San Diego counties have similar rates of youth arrest for serious, direct-file eligible offenses, youth living in Yuba County in 2014 were 34 times more likely to be direct filed than youth in San Diego County.

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Sixteen states, including California, give prosecutors the power to direct file youth in adult court. However, juvenile justice advocates in these states are trying to repeal or reform direct file practices, and legislators across the U.S. have introduced measures to do the same. Reforms include: allowing for appeals or reverse-transfer motions, developing specific criteria and thresholds for making direct file decisions, improving the tracking of demographic and outcome data, expanding prosecutorial accountability to city councils and creating committees to ensure sound transfer decisions.

Florida attempted to reform direct file this year with a bill that would have also required prosecutors to secure judicial approval before charging a youth as an adult. The bill died this March during Florida’s 2016 legislative session. Meanwhile, a recent report by Human Rights Watch found that 1,607 youths were direct filed in Florida’s criminal courts in 2014, more than four times as many as in California.

In 2012, Colorado passed three pieces of legislation reforming direct file. This legislation enhanced direct file eligibility requirements, granted youth the right to request judicial review of the determination to file in adult court, prohibited direct-filed youth from being held in adult prison pretrial and allowed youth who turn 20½ in an adult prison to have their placement reconsidered. While Colorado prosecutors continue to use direct file, these reforms added due process measures for direct-filed youth.

In California, prosecutors have increased their use of direct file despite approximately 40 years of plummeting youth crime. In 2014, 80 percent of youth in the California criminal justice system were placed there by direct file. Direct files increased by 23 percent since 2003 (per 100,000 youth ages 10-17), despite a 55 percent drop in serious juvenile felony arrests from 2003-14. To address this problem, California’s Public Safety and Rehabilitation Act of 2016, or "Proposition 57, if approved by voters in November, would end the practice of prosecutorial direct file and instead allow a judge to determine if a youth should be transferred to adult court.

Youth serving time in adult prisons will be released from prison at some point. How do we want young people to return to their communities and society? Thriving or struggling? Legislators and advocates must develop realistic policies that best serve youth and our communities — and direct file does neither.

Rebecca Wegley is a member of the Center on Juvenile and Criminal Justice’s policy and communications team and Master of Public Policy student at Mills College in Oakland, California.

More related articles:

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After the Doors Were Locked

States Consider Legislation to Raise the Age for Juvenile Court Into Young Adulthood

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