FLORIDA'S DIRECT FILE STATUTE: A PROSECUTOR'S PLAYGROUND.

• Author: Chirino, Kristen

1. INTRODUCTION

   Miguel Rodriguez was fifteen years old when he and three friends made a decision that would brand Miguel a convict for the rest of his life. (1) Miguel and his three friends broke into what they believed was an abandoned home and vandalized the property. (2) He was a good kid who had never been in trouble before, nevertheless, prosecutors charged him as an adult under the direct file statute. (3) Eventually, Miguel accepted a plea bargain and was sentenced to four years' probation, ordered to pay restitution, and given house arrest for six months. (4) One evening, Miguel missed his curfew by a few minutes, which resulted in a violation of his probation and put him in prison for four years because the prosecutor direct filed and tried him as an adult. (5)

   Since the establishment of this republic's first juvenile court, legal systems in the United States have recognized that children are distinctive from adults and ought to be treated differently. (6) The juvenile justice system was founded on the premise that juvenile offenders were simply delinquent and required individualized treatment where the goal was rehabilitation. (7) Through its decision in Kent v. United States, the Supreme Court established a process to waive (8) juvenile court jurisdiction over a young offender and transfer jurisdiction to the adult criminal court. (9) However, beginning in the 1980s, the rehabilitative ideal that had guided the juvenile justice system began to take a turn toward more punitive measures. (10) This ideological shift came in part as a response to an increase in crimes committed by juveniles. (11)

   Trying juveniles as adults is greatly debated in our country. (12) There are those who believe in "adult time for adult crime," while others believe children do not have the capacity to be as culpable as adults. (13) There are also those who believe trying juveniles as adults will deter them from committing future crimes. (14) Among the juvenile waiver procedures implemented across the United States, prosecutorial direct file has been among the most controversial. (15) Under direct file statutes, a prosecutor's decision to transfer a juvenile to adult court is usually made without any oversight from either the juvenile court or the adult court. (16) Some states, including Florida, also have mandatory provisions requiring a prosecutor to charge certain offenses directly in adult court. (17) Most states with direct file statutes do not provide prosecutors statutory guidance as to what factors they should consider when deciding whether to transfer a juvenile to adult court. (18)

   Juvenile transfers into criminal court have far-reaching implications for children and "significant symbolic meaning for the justice system." (19) For the child, transfer to the adult criminal system means the possibility of harsher sentencing, and for the system, transfer to adult criminal court symbolizes that the juvenile justice system will no longer protect the child. (20)

   This Comment will examine the advantages and disadvantages of direct file statutes, focusing primarily on Florida. (21) Part II of this Comment analyzes the three different types of waiver--judicial, legislative, and prosecutorial--and discusses Florida's juvenile transfer laws, specifically Florida's direct file statute. (22) Part III discusses the issues stemming from Florida's direct file statute, particularly that the statute is arbitrary, does not deter crime, increases recidivism, and goes against the Supreme Court finding that juveniles are different from adults. (23) Lastly, Part IV proposes to eliminate discretionary prosecutorial direct file, and how the Florida Legislature can limit prosecutors' discretionary power in the meantime. (24)

2. BACKGROUND

   1. OVERVIEW OF JUVENILE TRANSFER LAWS

      State legislatures created the transfer mechanism for juvenile cases that would be more appropriately addressed by the adult criminal justice system. (25) In the United States, every jurisdiction has a procedure for transferring or waiving juveniles into adult criminal court. (26) There are generally three types of waivers: judicial waiver, legislative waiver, and prosecutorial waiver. (27)

      1. Judicial Waiver

         Judicial waiver allows the juvenile court judge to be the primary decision maker in the transfer process. (28) Judicial waiver is most often initiated by a prosecutor requesting that a juvenile be tried as an adult in the adult criminal justice system. (29) The juvenile court then holds a fitness hearing to determine whether the juvenile is amenable to the juvenile court's treatment and services. (30) The basic structure of the hearing must conform with the criteria set out in Kent v. United States: (1) the juvenile must be afforded effective assistance of counsel; (2) the judge must allow the juvenile to be effectively represented by counsel; (3) the juvenile's counsel must be provided access to the juvenile's social record; and (4) the judge must provide a statement of reasons for his decision if he waives the juvenile court's jurisdiction. (31) Although juvenile judges have broad discretion in waiving jurisdiction, there are certain factors that must be taken into account when evaluating the juvenile, which vary from state to state. (32)

      2. Legislative Waiver

         Legislative waivers, or statutory exclusions, automatically exclude certain categories of juvenile offenders from juvenile court jurisdiction. (33) Through legislative waiver, states modified their transfer statutes to include objective requirements as an automatic basis for transfer, mainly age and offense committed. (34) As of 2011, twenty-nine states have enacted legislative waiver statutes. (35) Legislative waiver presumes that the juvenile court cannot sufficiently penalize some juvenile offenders, and thus assesses the appropriate punishment for them. (36)

      3. Prosecutorial Waiver

         Prosecutorial waiver, or direct file, places the decision to try a juvenile as an adult entirely with the prosecutor. (37) Under direct file statutes, the juvenile offender is subject to the concurrent jurisdiction of the criminal court and the juvenile court. (38) In this instance, a prosecutor may file charges against the juvenile either initially in juvenile court, or directly in the adult criminal court. (39) Today, thirteen jurisdictions have direct file statutes. (40) Under direct file statutes, neither the juvenile nor the criminal court has any oversight over the prosecutor's transfer decisions. (41) Additionally, most states' direct file statutes do not provide prosecutors with any guidance as to what factors they should consider when deciding to charge a minor directly in adult criminal court. (42)

   2. FLORIDA'S JUVENILE TRANSFER LAWS

      Florida's current statutory delinquency scheme includes judicial waiver, as well as mandatory and discretionary waiver by the state attorney. (43) Indictment may also serve as a method to transfer a juvenile to adult criminal court. (44) The judicial waiver provisions of Florida Statute [section] 985.556 provide for voluntary and involuntary waiver, and further subdivides involuntary waiver into discretionary and mandatory. (45) The judicial waiver statute ultimately vests the decision to transfer with the juvenile judge, even for mandatory judicial waiver. (46)

      The direct file portion of the statute is also subdivided into discretionary and mandatory direct file. (47) In Florida, prosecutorial direct file is the most commonly used mechanism to transfer juveniles to criminal court. (48) Once a juvenile is direct filed into adult criminal court, he or she is no longer under the jurisdiction and protection of the juvenile justice system. (49) Ordinarily, the prosecutor's decision to file charges in adult court is not appealable. (50)

      1. Discretionary Direct File

         The Florida Legislature initially enacted prosecutorial waiver legislation in 1978, granting prosecutors limited discretion. (51) Since then, the list of qualifying offenses has expanded, and the discretion of the prosecutor has broadened. (52) The current version of Florida's discretionary direct file statute allows prosecutors to charge juveniles aged sixteen or seventeen directly in criminal court for virtually any offense, and juveniles aged fourteen or fifteen for specific offenses. (53) With respect to juveniles aged sixteen or seventeen, prosecutors wield unfettered discretion in determining whether to charge the juvenile directly in adult criminal court. (54)

      2. Mandatory Direct File

         Florida's mandatory direct file statute was initially introduced along with discretionary direct file in 1978. (55) Mandatory direct file applies when a juvenile's case meets certain criteria set out in the statute. (56) The mandatory direct file provision effectively bypasses waiver hearings as to enumerated offenses and vests original jurisdiction in the adult criminal court. (57)

3. DISCUSSION

   1. FLORIDA: THE LEADER IN THE TRANSFER OF JUVENILES TO ADULT COURT

      Florida transfers more juveniles out of the juvenile court and into the adult criminal justice system than any other state. (58) Between 2003 and 2008, Florida transferred juveniles to criminal court at approximately twice the rate of Oregon and Arizona. (59) During that same time period, Florida transferred juveniles at about eight times the rate of California. (60) Florida has ultimately transferred over 12,000 juveniles to adult criminal court over a period of just four years. (61)

      One explanation for these extraordinary numbers is Florida's direct file statute. (62) With respect to trying juveniles in adult criminal court, Florida relies on its discretionary direct file statute almost exclusively. (63) Direct file has nearly replaced judicial waiver in Florida, which accounts for only about two percent of total transfers. (64)

      If a juvenile violates the law, the prosecutor files either a petition, in which case the juvenile is adjudged civilly delinquent, or an...