New Juvenile Justice Laws Increase Options for Youth
| Publication year | 2013 |
| Pages | 37 |
| Citation | Vol. 42 No. 4 Pg. 37 |
Articles Juvenile Law
Juvenile Law articles are sponsored by the CBA Juvenile Law Section and generally are intended to apprise practitioners of substantive and procedural information concerning the field of juvenile law. Readers who are interested in submitting articles should contact the Coordinating Editors.
Coordinating Editors
Barbara Shaklee, Denver—(720) 944-2965, barbarashaklee@dhs.co.denver.co.us; Linda Weinerman, Denver—(303) 860-1517, lindaweinerman@coloradochildrep.org
About the Author
Kim Dvorchak is the Executive Director of the Colorado Juvenile Defender Coalition (CJDC), a nonprofit organization dedicated to ensuring excellence in juvenile defense and advocacy and justice for all children and youth in Colorado. CJDC led a public education campaign regarding the prosecution of children as adults and supported the legislative reforms discussed in this article.
The 2012 legislative session produced significant changes in the Colorado Children’s Code concerning youth accused of serious crimes. This article reviews amendments to Colorado’s direct file, aggravated juvenile offender, and pretrial detention statutes.
Colorado’s juvenile court celebrated its 110th anniversary on March 7, 2013.[1] Colorado was the second state in the nation to establish a juvenile court to rehabilitate children[2] separate from adults.[3] However, even since the early days of juvenile court, Colorado allowed for the prosecution of some children in adult criminal court.[4] Over the past twenty years, the national debate over such laws has intensified, with shifting philosophies from "adult time for adult crime"[5] to "judging children as children."[6] Colorado laws shifted, as well, from relaxing to tightening controls over how and when children can be prosecuted as adults in criminal court.
Colorado’s Children’s Code provides exclusive jurisdiction to the juvenile court over any child 10 to 17 years of age who is accused of a crime.[7] There are two exceptions that permit the prosecution of a child in adult criminal court: the judicial transfer statute[8] and the prosecutorial direct file statute.[9] Once a child’s case is filed in adult criminal court under either law, the child continues detention in a juvenile facility but may be transferred to an adult jail.[10] In no case is judicial transfer or direct file mandatory; any case may remain in juvenile delinquency court, where increased sanctions are available under the aggravated juvenile offender statute[11] and other mandatory sentencing provisions.
Practitioners representing children accused of serious crimes must become familiar with new juvenile justice laws and the evidence relevant for decision making. The American Bar Association issued guidelines for policymakers and practitioners regarding children in the criminal justice system, recommending:
Lawyers who represent youth in the adult criminal justice system should have specialized training in developmental psychology and the distinctive characteristics of youth. Public defender offices should, whenever practicable, have separate units or attorneys who specialize in the handling of such cases. There should also be staff to assist in collecting and developing social and psychological information helpful to the defense attorney, and in assisting in the development of innovative and tailored sentencing proposals for such youth.[12]
These guidelines, issued nearly a decade ago, could not be timelier. This article provides an overview of the prosecution of children in adult criminal court, and discusses changes made during the 2012 legislative session to the direct file, pre-trial detention, and aggravated juvenile offender statutes.[13]
Judicial Transfer
The traditional method for prosecuting a child in adult criminal court is the judicial transfer statute.[14] These cases begin in juvenile court with the filing of a juvenile delinquency petition against the parent and child. The district attorney then may file a motion requesting that the case be transferred to adult criminal court.[15] The juvenile court sets the transfer motion for an evidentiary hearing, after which the judge decides whether it would be "contrary to the best interests of the juvenile or of the public to retain jurisdiction"[16] in the juvenile court system.
The constitutionality of judicial transfer was considered by the U.S. Supreme Court in the landmark case of Kent v. United States.[17] The Court found that a judge’s decision to transfer a child from juvenile court to criminal court was a "critically important" action with "tremendous consequences" for the child.[18] Relying on the child’s Fifth Amendment right to due process of law, the Court stated:
there is no place in our system of law for reaching a result of such tremendous consequences without ceremony—without hearing, without effective assistance of counsel, without a statement of reasons.[19]
Colorado’s judicial transfer statute complies with the Kent decision.
The judicial transfer statute provides fourteen factors for the court’s consideration in making this decision, [20] and outlines the criminal court’s authority in sentencing a child as an adult.[21] Children are eligible for judicial transfer if they are 12 to 13 years of age at the time of the offense and accused of a class 1 or 2 felony (first- or second-degree murder, first-degree kidnapping), or a crime of violence;[22] or if they are 14 to 17 years of age at the time of the offense and accused of any felony.[23]This process also is referred to as "waiver, " because the juvenile court decides whether to waive its jurisdiction and send the case to adult criminal court.
The Direct File Difference
Prosecutorial direct file statutes were designed to circumvent judicial transfer procedures and give prosecutors the power to decide whether to file a case in adult criminal court.[24] Colorado’s direct file statute used to give prosecutors sole discretion to file a child’s case directly in adult criminal court, with no right to a hearing or judicial review of that decision.[25]
Previously, children were eligible for direct filing in adult court if they were 14 to 17 years of age, and accused of a class 1 or 2 felony (first- or second-degree murder); a crime of violence; a violent sex offense; an offense involving a handgun; vehicular homicide; vehicular assault; arson; the attempt to commit any such crimes; or, for a non-violent felony, if the child was determined to be a habitual juvenile offender.[26] Once the case was direct filed, the juvenile court lost jurisdiction and the case remained in adult criminal court through sentencing.[27] As discussed below, in 2012 the direct file statute was substantially reformed to narrow eligibility, provide judicial review, and increase sentencing options.
In practice, a prosecutor’s decision to pursue the judicial transfer method of adult prosecution has been shaped by the scope of eligibility under the direct file statute. When a child is direct file eligible, prosecutors typically use the direct file statute for prosecution in adult criminal court. When a child is not direct file eligible, a prosecutor decides whether to pursue judicial transfer or to resolve the case in juvenile court. The 2012 legislative changes put more children inside the purview of the judicial transfer statute, and outside the scope of the direct file statute. That said, the same number of youth are eligible for adult prosecution. The procedures have changed for different classes of kids, but the ultimate outcomes of adult prosecution and adult sentencing remain available.
History of the Direct File Statute
Although direct file eligibility increased over time, the most noteworthy expansion of the law occurred after a period the media called the "summer of violence."[28] In September 1993, a special legislative session considered multiple bills aimed at curbing youth violence and increasing public safety, including an expansion of the direct file statute and the creation of the Youthful Offender System.[29] Direct file eligibility continued to expand in 1994, [30] as well as in 1996.[31] From 1993 to 2010, it is estimated Colorado prosecuted more than 3, 000 children as adults.[32]
Research and reports began to emerge challenging the efficacy of prosecuting children as adults. One report released by the Centers for Disease Control and Prevention found that sentencing youth as adults increased recidivism and "was counterproductive to reducing juvenile violence and enhancing public safety."[33] A report published by the Office of Juvenile Justice Delinquency and Prevention reached the same conclusion.[34] Around this time, the U.S. Supreme Court issued a landmark opinion abolishing the death penalty for all children under the age of 18, finding that children as a class are developmentally less mature than adults, less culpable or blameworthy than adults, and have a greater capacity for change as they grow and mature.[35] There also were studies showing children under the age of 16 are more likely to lack the cognitive skills to understand court proceedings, effectively cooperate with their attorneys, and make sensible decisions.[36] This research, in addition to litigation challenging the constitutionality of direct file, [37] began to swing the pendulum back toward tightening controls on adult prosecution of children.
In 2008, there was an unsuccessful attempt to reform the direct file statute.[38] Two years later, a bipartisan bill made gradual changes to the direct file statute by limiting the eligible offenses for 14- to 15-year-olds to first- and second-degree murder, violent sex offenses, or attempts to commit any of the above (eliminating vehicular offenses, arson, lesser crimes of violence, and...
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