Florida Prosecutors Need to Limit Direct File of Juveniles Until Legislation Protects Them

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Young man in handcuffs wearing blue hoodie.

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The state of Florida sends more juveniles through the adult court system than does any other state in the country. In 2018 alone, the number of children directly filed into the adult court system reached 900. Florida lawmakers have the opportunity this legislative session to change this status quo of fervent juvenile prosecutions, and they should seize it.

From a national perspective, Florida’s current model is abnormal. Every state allows for the transfer of children to adult court in severe circumstances, but a majority of these states use judicial waiver — a process in which a hearing is held to determine whether it is appropriate for a child to be prosecuted in adult court.

Jesse Kelley (headshot), criminal justice policy analyst at R Street Institute, smiling woman with long brown hair, earrings, black top.

Jesse Kelley

Florida not only has laws that mandate the direct file of youth in certain cases, it is also one of only 15 states that employs discretionary direct file. The latter mechanism allows prosecutors to unilaterally opt to file a criminal case against a minor in the adult criminal justice system. This type of direct file cannot be appealed or reviewed by a judge, meaning the juvenile’s case is sent directly to adult court with no opportunity for the child or their parents to challenge the prosecutor’s decision.

Opponents of eliminating or limiting the use of direct file believe the juvenile justice system is ill-equipped to handle violent youth. For example, former U.S. Rep. Bill McCollum has bluntly remarked that serious juvenile offenders “should be thrown in jail, the key should be thrown away and there should be very little or no effort to rehabilitate them.”

This belief stems from a bygone “tough on crime” era that must be laid to rest. Children who commit violent acts may have different risk factors and may need different, lengthier interventions than most other juveniles. But with appropriate services — like tailored programming — even youths who exhibit violent behavior can be rehabilitated in juvenile facilities.

Checks and balances needed

Prosecutors have a duty to weigh the benefits of public safety with the extreme solution of sending children into the adult system. But granting them unfettered discretion to do so will not only continue the trend of needlessly prosecuting hundreds of children as adults, it may also lead to an overtaxed court docket where cases that might have been diverted out of the system are being prosecuted.

To avoid this harm, direct file decisions should receive basic “checks and balances” scrutiny. One way to effectively implement this type of review process is being proposed via Florida SB 876, HB 1293 and HB 575. These three bills would create a due process hearing before a judge in which a child whose case has been filed in adult court can request a return to juvenile court. A judge would be required to consider several factors during the hearing, including the child’s age, maturity, history of trauma, level of participation in the offense and whether the child would be better served in the juvenile or adult system. Additionally, the legislation would ask the judge to explain the court’s decisions in writing.

Until such legislation can be passed, however, it is critical for Florida prosecutors to exercise their authority to limit direct file prosecutions as much as possible. In an effort to help prosecutors understand the consequences of using discretionary direct file, training or continuing legal education courses should review these issues so that state attorneys might more carefully weigh the costs versus the benefits of prosecuting children in adult court.

Advocates met with lawmakers and rallied in support of legislation aimed at limiting the use of direct file in the Sunshine State earlier this month. With just under two months left in the 2019 legislative session, Florida lawmakers have the opportunity to re-examine and alter a policy that is leading to excessive incarceration of youth in the adult criminal justice system. They should take this opportunity seriously.

Jesse Kelley is a government affairs specialist and criminal justice policy analyst at the R Street Institute.

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