How Prosecutors in Florida Gained Incredible Power Over the Fate of Juveniles

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Michael Rivera/Wikipedia/CC

Florida’s Historic Capitol and Florida State Capitol

Michael Rivera / Wikipedia/CC

Florida’s Historic Capitol and Florida State Capitol

From the The Florida Times-Union, Jacksonville / (MCT)

The headlines screamed across the world, branding Florida as a state of baby-faced murderers:

“Sun ‘N’ Guns: Florida crime surge rocks Canadians”

“Fear of Florida the latest phobia: State officials are as worried as the tourists”

“State of terror: Florida killing spoils Disney World dream for a million holiday Brits”

That was 1993. Nine tourists visiting the Sunshine State had died violently in the span of a year, several at the hands of gun-wielding teenagers.

Florida’s multibillion-dollar tourist industry was near panic. The Florida legislature called an emergency session.

“Law enforcement, whether it was city police or sheriff’s offices, were screaming to have something done,” said former Florida Rep. Buzz Ritchie “They would pick up a teenager, a child if you will, for doing something that was obviously a felony, but they’re back on the street the next morning.”

What they did was give state attorneys incredible power over the fate of juveniles in the judicial system.

SEE ALSO: Angela Corey’s office threatens Jacksonville area juveniles with adult charges, Matt Shirk and private attorneys say

The Times-Union reported Sunday that Public Defender Matt Shirk and private lawyers say State Attorney Angela Corey, whose circuit includes Jacksonville, has used that power to unfairly threaten juveniles with being sent to adult court if they don’t accept record-staining direct commitments to juvenile-incarceration facilities.

Corey’s office said juvenile cases are handled no differently than adult cases, according to a statement released Friday.

Shirk said state law needs to be changed to provide checks and balances.

Confronting Teenage Crime

Direct commitments — the power given to prosecutors in 1994 — are usually plea deals. When juveniles agree to plea deals, they are often incarcerated without the chance to hear the evidence against them, examine police work or interview witnesses. Also, the Florida Department of Juvenile Justice (DJJ) typically is not given the chance to evaluate the juvenile’s background and needs.

Shirk’s office estimates that more than 800 juveniles in the past five years were first threatened with adult charges before accepting pleas. The Times-Union’s analysis also found a disproportionate number of low-risk youth from the Jacksonville area are being incarcerated, compared to other Florida judicial circuits.

Before 1994, judges would hold a special hearing, much like a small trial, where both sides would argue their case to decide which court would be best for each contested case.

After this law was changed, state attorneys could send children directly to adult court without that hearing and without a juvenile judge’s go-ahead.

Former state Rep. Elvin Martinez, one of the Democrat sponsors of the bill that gave state attorneys power over direct filing, said lawmakers were forced to act to get juvenile crime under control.

Ritchie, another Democrat co-sponsor of that bill, said juveniles would come in for committing felonies, would get released from juvenile court and, like “a revolving door,” would be back in court days later for another felony.

“We were seeing patterns of behavior from certain juveniles,” said Ritchie, now president of the Gulf Coast Community Bank in Pensacola. “There was some evidence that certain judges would not incarcerate. Certain judges would just turn loose.”

“Some of the prosecutors weren’t acting serious enough, in my opinion,” said Martinez, who is also a retired criminal judge.

But the true driving force was the public perception that crime was out of control in Florida, especially crimes committed by kids.

No Votes Against

In 1993, German tourists Jorg and Sonya Schell had just gotten to their motel after a dinner out in Homestead when a group of teenagers tried to rob them, the Miami Herald reported. Two 16-year-olds and a 17-year-old came up to them, and one grabbed Sonya Schell’s purse. She screamed. As her husband rushed toward her, one of the teens shot him fatally in the neck. One teen was sentenced to life in prison, one to 25 years and another to 20 years, the Herald reported.

That fall, British tourist Gary Colley was sleeping in his car at a rest stop on Interstate 10 near Monticello, the Ocala Star-Banner reported. Several youth told him to get out of the car, and Colley threw the vehicle in reverse. Someone shot Colley in the neck through the window, killing him. One of the attackers, who was 16 at the time of the shooting, was sentenced to life in prison, and other teens were given shorter prison sentences, the Miami Herald and St. Petersburg Times reported.

State lawmakers passed the bill unanimously, along with various others reforming Florida’s juvenile justice system.

A “Baby Step” May Be First

Sending children to adult court is a practice that’s been around for about a century, but it stuck as a legal practice in the 1960s. Questions about which crimes merited adult court were settled when the U.S. Supreme Court decided children as young as 16 could be sent to adult court if they’d committed a felony.

The typical process at that time included a special hearing, called a judicial waiver. Prosecutors would ask the judge for the hearing, both sides would convene and present their cases and the judge would decide whether juvenile or adult court was best.

The Florida legislation then allowed state attorneys to bypass that hearing by sending the juvenile’s case directly to adult court — the process called direct file — starting July 1, 1994.

That law change also let prosecutors send children as young as 14 to adult court if they met a certain criminal threshold, which included committing felonies with guns.

Florida isn’t the only state that allows prosecutors, rather than judges, to make the decision to charge a juvenile as an adult.

Fifteen states give prosecutors that authority, according to the most recent tally from the U.S. Department of Justice. Of those, 11 states allow a juvenile filed in adult court ask a judge to review that decision, a process called a reverse waiver.

Asking for a reverse waiver isn’t an option in Florida.

Marie Osborne, the head of the juvenile division in Miami-Dade’s Public Defender’s Office, said juveniles would be better served with a judicial waiver, where the juvenile judge would make the decision on whether to charge a juvenile as an adult.

Under that structure the state would make arguments for adult court and the defense would make arguments for juvenile sanctions.

“Now that’s due process,” Osborne said.

Osborne said the juvenile system’s caseloads are significantly slimmer than decades ago, providing more time for judges to make the decisions. And now there’s more research and evidence on how juveniles’ brains work.

Rob Mason, the head of the juvenile division for the Public Defender’s Office in Jacksonville, agreed with Osborne because juvenile judges are more familiar with juvenile services and research. But he also said the defense community may have to live with a “baby step” in the form of the reverse waiver.

“We’re hoping for reverse waiver just because we’re trying to get something going that helps us,” Mason said.

“Most powerful office holders”

Lawmakers said they knew the power they were handing state attorneys. That power isn’t a problem as long as it is used properly, they said.

“The prosecutors are the most powerful office holders known to man,” Martinez said. “That’s why it’s so important you have a state attorney who is not ambitious and just follows the law.”

Ritchie said the legislation certainly strengthened state attorneys, and he said he felt they would use this power wisely.

“We strengthened them measurably,” Ritchie said. “We did intend for them to have that discretion.”

When told by a reporter about how Corey’s office is accused of leveraging the threat of direct filing against juveniles, Ritchie said he wasn’t familiar with how Corey runs her office, but couldn’t imagine Corey’s office would be using the threat of direct filing unless prosecutors feel juvenile court won’t give these children the help they need.

“You might have a good percentage of prosecutors that have lost confidence that the juvenile justice system is going to do anything,” he said.

Having the ability to send a child directly to adult court was — and still is — a valuable resource, said Bill Cervone, state attorney for the Gainesville area.

Sending a child to adult court takes consideration, he said, but sometimes it’s the best option for the child. If a teen has a drug problem, sometimes they can get better care from an adult program than a juvenile one. Sending a toughened youth to a juvenile facility where he would be a bad influence on younger, less hardened kids is also a bad idea.

Cervone, who has worked for the state attorney’s office since 1973, said “the basic criteria that motivates [his office] to put a child into adult court really did not change” after state attorneys’ power was expanded.

“Certainly, in those cases that we deemed appropriate, it made the process much simpler,” he said. “I think it is an appropriate use of discretion for us to have so long as you have some guidance, which the legislation has given us.”

When asked about Corey’s specific practices, Cervone said it wouldn’t be appropriate for him to comment on the operations of another state attorney.

A Change by Law or Ballot

After state law changed in 1994, state attorneys across Florida each had their own way of using the new sovereignty. Some stuck to their old standards and only sent children to adult court when there were no other options, said Frank Orlando, former juvenile and circuit court judge. Some pushed forward with their new power, much like the way Angela Corey’s office currently handles cases.

“Some state attorneys have an automatic list. You do this; you go to adult court,” said Orlando, who is now the director of the Center for the Study of Youth Policy at Nova Southeastern University in the Fort Lauderdale area. “Any child who was involved with those crimes, no matter what his crime or her crime was, they were just direct filed automatically.”

Changing this power would take nothing less than a change in state law, something current lawmakers say is unlikely. Rather, they said, it’s important that the public voices their opinion by voting for state attorneys whom they trust to use all powers — including direct filing — appropriately.

Shirk, the Jacksonville-area public defender, said the laws on charging juveniles as adults should to be changed to allow for review of these cases, the Times-Union reported Sunday.

“You change the law, then you don’t have those problems. You don’t have those threats,” he said.

Corey said during a November debate on juvenile issues that the state’s laws do not need changing.

“What you have to do is appreciate the laws that our legislators have given us where in Florida we have the ability to put a juvenile into adult court and still give them juvenile sanctions if it’s appropriate,” she said. “It’s a good law; it’s worked for all these years and there’s no reason to change it.”

Florida Sen. Audrey Gibson, a Democrat who represents parts of Jacksonville, said she isn’t surprised to hear complaints that Corey uses coercive tactics to get juveniles to accept plea deals.

“She has always said if there was a gun involved, there would be no mercy, period,” Gibson said. “That doesn’t mean people should be threatened.”

She said she’s displeased with Corey’s methods but said a law change is unlikely.

“Even though I wasn’t in the Legislature when (it) changed the law, I am more than certain that that could not have been the intent of the legislation and it certainly is not proper due process at all,” she said. “I think the state attorney can do better than that. I think they can do better by a young person than that.”

Florida Sen. John Thrasher, a Republican whose district includes St. Johns County, said giving state attorneys the ability to control direct filing gives them an essential tool to do their jobs.

“It’s worked for 20 years. I think it’s always been used in a consistent manner with the law,” he said. “They should have that right. I think it’s appropriate for their job.”

Thrasher voted in 1993 to change state law to give state attorneys authority over direct filing. He noted he was part of a Republican minority, and the bill was supported heavily by the Democratic majority.

Thrasher said it would be inappropriate to comment on the actions of an elected official outside of his district.

“If people feel like they’re not doing their job or they’re doing it inappropriately,” Thrasher said, “then they certainly have the right and they should make that known at the ballot box.”


Meredith Rutland: (904) 359-4161; Topher Sanders: (904) 359-4169


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