California’s Prop 57 Would Have Judges, Not Prosecutors, Decide If Youth Are Tried As Adults

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On Nov. 8, California voters will consider Proposition 57, a ballot initiative that would bring much-needed reform to the state’s juvenile and criminal justice systems. The measure, championed by youth justice advocates and Gov. Jerry Brown, is predicated on the values of rehabilitation and second chances.

If passed, Proposition 57 will extend opportunities for parole consideration, invite a revision to the prison system’s earned credit scheme and place the decision to transfer youth to adult criminal court into the hands of judges.

The measure would profoundly impact California’s approach to serious juvenile cases. Currently in California, county prosecutors are granted the authority to bypass the juvenile judge and directly file charges against a young person in adult court, a practice known as “direct file.”

Direct file subjects youth as young as 14 to a criminal courtroom and its risks of a lengthy prison term and lifelong felony conviction. For a young person, the experience of adult criminal court can be traumatic, exacerbating existing psychological needs and resulting in higher rates of recidivism.

Yet district attorneys have just 48 hours to make this consequential decision, often with little more than an incident report. Unlike a judge, prosecutors are interested parties in a juvenile court case and their decision-making can be burdened by the incentive to deliver a punitive outcome. In some cases, prosecutors can threaten youth with direct file to coerce them into unfavorable plea bargains in juvenile court.

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Research shows that direct file introduces additional disparities into an already unequal system. Youth in California face vastly different odds of direct file depending on where they live and their race or ethnicity. Two recent reports from the Center on Juvenile and Criminal Justice, the W. Haywood Burns Institute and the National Center for Youth Law (“The Prosecution of Youth as Adults” and its 2015 update) find that youth in certain counties and youth of color are direct filed at exceptionally high rates.

In 2015, just six of California’s 58 counties comprised more than half of the state’s direct file cases. Moreover, African-American and Latino youth across the state were direct filed at roughly twice the rate of white youth. When compared to trends in felony arrest, the reports find that a county’s serious juvenile crime rate appears to have no bearing on its use of direct file. In fact, direct file rates increased statewide in 2015, despite historic declines in the felony arrest rate of youth.

One factor does appear to influence a county’s reliance on direct file: the political affiliation of its district attorney. Another study by the Center on Juvenile and Criminal Justice finds that Republican DAs direct file charges against youth at 2.4 times the rate of Democratic DAs, and are more likely to direct file youth of color.

California instituted direct file in the midst of the state’s “tough on crime” era, but voters are poised to repeal it on Election Day. This would leave the United States with 13 other states and the District of Columbia that continue to permit prosecutors to charge youth as adults. In Florida, youth as young as 14 can be consigned to adult court for a long list of offenses, including nonviolent property crimes. In North Carolina and New York, youth ages 16 and older are automatically placed in adult court, regardless of the charge. Though New York City recently vowed to transfer 16- and 17-year-olds out of the notorious Rikers Island, the move would represent a positive but specialized response to the systemic menace of adult prosecutions.

Despite the prevalence of transfer laws and prosecutorial direct file nationwide, reformers are gaining traction in their efforts to keep youth in juvenile court. Florida state lawmakers have introduced a number of recent bills that, if successful, would have placed constraints on the use of direct file. In Illinois, the state legislature passed Senate Bill 1830 and House Bill 2471, which grant more sentencing discretion to judges in cases involving youth under 18.

California’s Proposition 57 is a beacon of reform, providing criminal and juvenile justice advocates with a workable and politically viable model for change. On Nov. 8, California voters must consider the legacy of direct file: its uneven application across counties and unjust burden on youth of color. Ending direct file and instituting criminal justice reforms would expand rehabilitative opportunity for youth and adults while promoting public safety.

Maureen Washburn is a member of the Policy and Communications team at the Center on Juvenile and Criminal Justice.

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