Branded for Life

Florida’s Prosecution of Children as Adults under its “Direct File” Statute

Summary

Oliver B. was prosecuted in adult court in Florida when he was 16 for stealing two laptops from a high school classroom. Matthew N., also 17, was prosecuted in adult court for stealing a printer from the back porch of a house. The experiences of Oliver and Matthew—removed from the juvenile justice system as teenagers and tried in adult court for nonviolent crimes—are far from unique.

Florida transfers more children out of the juvenile system and into adult court than any other state. In the last five years alone, more than 12,000 juvenile crime suspects in Florida were transferred to the adult court system. New statistics developed by Human Rights Watch based on official Florida state data show that more than 60 percent of the juveniles Florida transferred to adult court during this period were charged with nonviolent felonies. Only 2.7 percent were prosecuted for murder.

Whether a particular youth accused of a particular crime in Florida ends up in adult court is in an important sense arbitrary. The new data show that nearly 98 percent of the juveniles in adult court in Florida end up there pursuant to the state’s “direct file” statute, which gives prosecutors unfettered discretion to move a wide range of juvenile cases to adult court (including any 16- and 17-year-old accused of a felony), with no involvement by a judge whatsoever. The data show that this discretion is being exercised differently by prosecutors in different judicial circuits within Florida. Too often, as detailed below, the same crime is treated differently depending on the predilections of the prosecutor where the crime occurs: different judicial circuit, different outcome. And there is evidence that racial bias is affecting that exercise of discretion with respect to certain crimes.

Most states in the United States do not allow for direct file. International law requires that children, including those accused of crimes, be treated as children. And for good reason. Neuroscience, recent US Supreme Court decisions, and a by-now large and growing literature show that children, including 16- and 17-year-old juveniles, are different and in important respects less culpable than adults who commit the same crimes, and more amenable to rehabilitation, a key objective that the juvenile system is designed to achieve. At present, however, while teens 17 and under cannot legally vote, drink, or buy cigarettes in Florida, they can be branded as felons for life.

Florida’s direct file law is a remnant of the “super-predator” panic of the late 1980s, the fear that America was becoming prey to a new generation of particularly depraved and violent teenagers. The panic was born of an overreaction to a nationwide spike in juvenile crime that has long since abated. Even the professor who coined the term now acknowledges that the super-predator prediction “was never fulfilled.”

Florida’s direct file law is not effectively serving public safety. Indeed, recent studies link transfers of juveniles to adult court to increases, not decreases, in recidivism. And, as this report shows, “direct file” is having negative, at times devastating, effects on the lives of thousands of children and their families.

Human Rights Watch spoke to over 100 youth and family members of youth charged directly in adult court by Florida’s prosecutors. Young people described feeling confused and abandoned once in adult court. Many encountered violence upon entering adult jails and prisons. In nearly every case documented in this report, they pled guilty to felonies that will mark them forever without having a full understanding of the repercussions. Some of them were unable, even months and years after entering their guilty pleas, to explain the process that resulted in their criminal convictions.

Florida should reverse course and adopt an approach grounded more firmly in fact and reason. Florida’s legislature should start by eliminating “direct file” and instead require that all decisions to transfer juveniles to adult court be made by a judge after a hearing, with a strong presumption that all children 17 and under should remain in the juvenile system.

*              *             *

I felt like my life was gone.

—John C., prosecuted as an adult at age 16, May 29, 2013

Many people know that children in Florida can be tried as adults for serious crimes of violence. Lionel Tate made headlines in 2001 when, at age 12, he was convicted and sentenced to life in prison without parole for the killing of a 6-year-old neighbor. Far less widely appreciated is that Tate represents a tiny minority: far more common are cases—like Oliver’s and Matthew’s—in which Florida children are tried in adult court for nonviolent crimes. Of the 1,535 children tried in adult court in Florida in 2012-13, 865 had been accused of committing nonviolent felonies; another 54 were sent to adult court to face misdemeanor or other non-felony charges.

As noted above, roughly 98 percent (98.3 percent in 2012-13) of juvenile cases transferred to adult criminal court in Florida in recent years ended up there pursuant to the state’s direct file statute. The statute gives prosecutors unfettered discretion to charge 16- and 17-year-olds accused of any felony in adult court and to charge 14- and 15-year-olds as adults with respect to certain specific felonies.

None of the children prosecuted under Florida’s direct file statute have the benefit of hearings where they can challenge the decision to transfer them to the adult system before an impartial decision-maker. The statute does not give judges any role to play in the decision to pursue direct file; a juvenile court judge cannot stop a prosecutor from charging a child in adult court, and an adult court judge has no power to refuse to hear a case and send it to juvenile court, regardless of how unsuitable the case is for criminal court. Florida fails to provide even the most basic of safeguards—a fair hearing —when determining the fate of its children.

Rather than being prosecuted in the juvenile system, which is intended to be rehabilitative and to balance the needs of society and the best interests of the child, such children are shunted off to the adult criminal justice system, which values punishment over everything else. They are placed in adult jails, deprived of age-appropriate programs, and subjected to harsh sentences and the life-altering consequences of adult felony convictions.

Many teens find out they are going to be tried as adults only when they are taken from juvenile detention to an adult jail, where many become victims of and witnesses to violence. Some go through the entire adult court process—from arrest and bond hearing to guilty plea—without fully understanding what is happening.

The decision to deny a child access to the rehabilitative services offered by the juvenile justice system and subject him or her to the more punitive adult system is, in most cases, made by the prosecutor, who is an adverse party in the proceedings and has no obligation to consider the defendant’s status as a child. While Florida’s still on-the-books but rarely used judicial waiver statute sets out eight factors, including “the likelihood of reasonable rehabilitation of the child,” that a judge is required to consider before ordering transfer to adult court, the direct file statute empowering prosecutors contains no such factors. Prosecutors are not even required to state why they are choosing to charge a child in adult court. Their decision is final and cannot be challenged.

As noted above, new statistics developed by Human Rights Watch for this report show that the overwhelming power Florida has handed to prosecutors is playing out in arbitrary and unjust ways. Florida’s judicial circuits send arrested children to adult courts at vastly different rates. This variation cannot be explained by the seriousness of offenses, the size of circuit youth populations, or other data Human Rights Watch examined. Even more disturbingly, once children are charged in adult court, some Florida circuits impose severe adult penalties at frequencies that are out of proportion to the levels of youth crime in those circuits.

Statewide, Florida is also treating its black male youth more harshly than their white counterparts. Black boys make up 27.2 percent of children arrested for crime, but account for 51.4 percent of youth sent to adult court; whereas white boys make up 28 percent of children arrested and account for only 24.4 percent of youth tried in adult court. A simple explanation might be that the crimes of black boys are more serious than those of white boys; Human Rights Watch looked into transfer rates for different categories of crime in an effort to find out. While for some crimes the transfer rates are similar, for others there is a marked disparity, particularly in certain judicial circuits. The 13th Circuit, for example, transferred 8.8 percent of white youths arrested for drug felonies to adult court; for black youth arrested for the same crimes, that figure was 30.1 percent, more than three times higher. The available data do not include important details of the cases that may partly account for the disparities, including the drug quantities involved and the criminal histories of the offenders, but the consistency and size of the racial disparities nonetheless are of serious concern.

The racial disparities and the variations between circuits are disturbing evidence of the unchecked discretion of Florida’s prosecutors. They are also problematic because the youth charged in Florida’s adult courts suffer extraordinarily severe consequences. Nearly every child charged and convicted in adult court ends up with an adult felony record that will haunt him or her for life. Many will serve time in Florida’s adult prisons. Even those who are charged in adult court but ultimately have their cases dismissed discover that their adult arrest records haunt them when they apply for jobs or housing. The permanent consequences of a felony conviction or a felony arrest record are difficult for any person to live with, but this is particularly so for a child. Those with convictions are barred by law from many types of employment, and suffer many other deprivations, including permanent loss of the right to vote.

The broad discretion the direct file statute gives prosecutors also has a corrupting effect on the juvenile system—Human Rights Watch learned that prosecutors in some jurisdictions are using the threat of direct file in order to obtain guilty pleas in juvenile court, thereby discouraging defendants from exercising their right to present a defense and avoid incarceration in juvenile facilities.

Once they are charged directly in adult court by Florida’s prosecutors, children are moved to adult jails pending disposition of their cases, and often serve their sentences in adult facilities. While Florida law requires that they be kept separate from adults, the experience of adult jail or prison is still traumatic. Many interviewees reported that violence was prevalent in adult jails and prisons. Furthermore, adult facilities are simply not designed to house children—interviewees suffered from inadequate time outdoors, a lack of appropriate counseling, and were prevented from visiting privately in person with their families (some were instead limited to video phone calls with their loved ones). They also noted that corrections officers lacked the skills or patience required to deal with adolescents. Additionally, the long distances between the prisons that housed them and their hometowns meant that family visits were rare.

The US Supreme Court, in a series of four recent cases, has underscored what every adult knows—that children are different. Their bodies, personalities, and brains are in the process of maturing, which means they are uniquely suited to the rehabilitative programs offered in the juvenile justice system. Although they can be held accountable for crimes, their punishment should take into account their diminished culpability, because they are less able to reason logically, to withstand peer pressure, to predict future outcomes in order to guide their behavior, and to make careful decisions. This extends to 16- and 17-year-olds. One judge who has presided over juvenile court for 14 years told Human Rights Watch, “I’ve been here long enough to understand that when someone is 16 and I ask them why they did it and they say ‘I don’t know,’ I believe them.”

This understanding is also reflected in international law, which has long recognized that children are fundamentally different from adults. International law requires that children receive special protection in all proceedings, including criminal proceedings. To comply with international standards, any criminal process that a child is subjected to must take into account the fact that children are uniquely capable of rehabilitation.

Some children are charged directly in adult court for their first offense. Others are subjected to direct file after a series of offenses adjudicated in juvenile court. In neither case is the unfettered power of prosecutors to charge them as adults warranted. Irrespective of any prior offenses, international human rights law requires that children receive treatment tailored to their development and well-being until they reach the age of 18. Even repeat offenders are entitled to that basic safeguard. There are practical reasons for exempting children from adult procedures and sanctions as well. Research shows that criminal behaviors peak in the teenage years, then decline rapidly and continue to slowly decline in late adulthood.

Florida should stop shunting children off to adult court to face processes they do not understand, to spend time in adult facilities not suited to children, and to serve adult sentences that bring a lifetime of consequences that they cannot fully grasp. Florida should re-examine its decision to give prosecutors sole authority to take children away from the juvenile system, where their parents can continue to play a role in their lives, in favor of placing them in the adult system, where parents have very little power and extremely limited contact with their children. The victims of crimes committed by children deserve justice, but children, including teens, can be held accountable without subjecting them to treatment as harsh as that meted out by the state of Florida.

Recommendations

To the Florida Legislature

• Repeal statutory authorization for direct file and instead require that all decisions to transfer children (youth 17 and under) to the adult system be made by a judge based on testimony and evidence presented in a hearing, with a statutory presumption that they remain in the juvenile system. The hearing should include consideration of the juvenile’s amenability to rehabilitation.
• To the extent youth 17 and under continue to be prosecuted in adult court, stop their pretrial confinement in adult jails and instead allow them to remain in the custody of the Department of Juvenile Justice.
• Make sealing or expungement of criminal records automatic upon completion of sentence for crimes committed by people 17 and under.

To Elected State Attorneys

• Until direct file is eliminated, apply the discretion conferred on prosecutors by Florida law to stop the practice of direct file.
• To ensure that prosecutions are conducted in a way that takes into account the specific characteristics of children and the desirability of promoting their rehabilitation, create specialized units of prosecutors tasked with prosecuting all cases in which the suspect is 17 or younger at the time of the offense.
• Provide training to all attorneys prosecuting juveniles in Florida in how to deal with juveniles, including information about adolescent brain development.

To Juvenile Court Judges

• Until direct file is eliminated, order state attorneys to indicate their intent to directly charge a juvenile in adult court at least 5 days prior to filing the case in adult court in order to give defense attorneys an opportunity to explain the procedure to their juvenile clients in a manner that the clients can comprehend.
• Until direct file is eliminated, provide an on-the-record explanation to children subject to possible direct file of what it is and what to expect if they go to adult court.
• Once direct file is eliminated, provide an on-the-record explanation to children subject to possible judicial waiver hearings of what those hearings entail and what to expect if they go to adult court.

To Circuit Court Judges

• Exercise all possible discretion to allow children charged as adults to remain in the community, or in the custody of the juvenile justice system if custody is required, rather than in adult jail pending trial.
• Tailor criminal procedures to children’s capacity to understand as well as to their needs and rehabilitative potential.
• When sentencing children convicted as adults, take into account the child’s developmental status and capacity for rehabilitation.  

To the Office of Court Administration

• Require all judges who preside over criminal cases to attend trainings in adolescent brain development and in how to address the needs of children tried as adults.

To Public Defenders

• Require all lawyers to attend trainings in adolescent brain development and in how to work with juvenile clients.
• Create specialized units to handle cases of children subject to the jurisdiction of adult courts so that felony lawyers can develop expertise in dealing with juvenile clients.

To the Department of Juvenile Justice

• Collect and make publicly available data on the disposition of cases where defendants are prosecuted in adult court for crimes committed while 17 or younger.
• Collect data on how often cases that are considered for direct file result in guilty pleas in juvenile court.
• Use all power and authority available to the agency to limit the number of youth held in adult facilities or tried in adult courts.

To the Department of Corrections

• Require all probation officers to attend trainings in adolescent brain development and in how to interact with children convicted of crimes.

Methodology

This report is based on interviews and correspondence with 107 individuals and relatives of individuals who were sent directly to adult court by Florida’s prosecutors, pursuant to Florida’s direct file statute, for crimes committed when they were 17 or younger. Human Rights Watch interviewed 42 of the 107 in person and three via phone. Of the people we interviewed in person, 23 were incarcerated at the time we spoke with them. We corresponded with the 62 remaining persons.

Human Rights Watch identified individuals prosecuted in adult court by searching the Florida Department of Corrections offender database, available at http://www.dc.state.fl.us/pub/obis_request.html. Human Rights Watch sent a letter and survey, the templates of which are included in Appendix A of this report, to 656 incarcerated individuals and probationers whose dates of offense and dates of birth indicated that they were likely prosecuted in adult court for offenses committed prior to age 18. The letters asked people to respond only if their cases had been filed in adult court by a prosecutor, rather than transferred there by a judge or after indictment by a grand jury. Several child advocates and defense attorneys also distributed the surveys to an unknown number of children they knew to have been sent directly to adult court by a Florida prosecutor.

Of the people who received surveys, 75 responded. Of those 75, Human Rights Watch was able to interview 11 in person. Nine of those were incarcerated at Sumter Correctional Institution when they spoke to Human Rights Watch. Human Rights Watch interviewed two additional people at Sumter who had not filled out surveys. At the time Human Rights Watch was conducting interviews, Sumter and Lancaster Correctional Institution were the two Florida prisons with the highest number of inmates aged 17 or younger. Lancaster authorities refused to give Human Rights Watch access to any incarcerated individuals. While the prison administration at Sumter did allow Human Rights Watch to conduct interviews at the facility, they would not allow interviews with any incarcerated people who were in solitary confinement. Ten incarcerated youth who responded to the Human Rights Watch survey were in solitary confinement on the days interviews were conducted, and were thus unavailable.

Four other survey respondents we interviewed were being held under house arrest, were on probation, or had completed their sentences. Of these, we interviewed three in their homes and one at a coffee shop.

Two individuals we interviewed came to our attention after their stories appeared in the media. We interviewed one at her place of business, the other by telephone. Finally, 13 children who were represented by the Ninth Judicial Circuit Office of the Public Defender and incarcerated at the Orange County Jail agreed to speak to Human Rights Watch but had not completed written surveys.

Human Rights Watch also spoke to 42 prosecutors, judges, defense attorneys, child advocates, and juvenile system probation officers who had been involved in cases prosecuted under Florida’s direct file statute. Human Rights Watch attempted to speak to adult system probation officers, repeatedly contacting several regional probation offices as well as the Florida Department of Corrections, which oversees adult felony probation, in an effort to speak to adult system probation officers who had supervised youth who had been subject to Florida’s direct file statute. We received no response.

This report focuses on Florida because it was among the first states to give prosecutors, rather than judges, the discretion to decide when a child should be charged as an adult. Historically, Florida has charged children as adults at a higher rate than other states. Thirteen US states report the rate at which children are removed from the juvenile system and prosecuted in the adult criminal system. Of these 13 states, Florida charged children as adults at a rate of 164.7 per 100,000 juveniles from 2003-2008, almost twice the rate of Oregon, which came in second.

In this report, in line with international law, the terms “child” and “children” refer to a person or persons below the age of 18. We use the term “young person” to refer to those who were older than 18 at the time of their interviews or correspondence with Human Rights Watch but had been prosecuted in adult criminal courts for crimes they committed as children. “Transfer” refers to the practice of removing a child from juvenile court jurisdiction and prosecuting him or her in adult court, regardless of whether the child gets to the adult system through direct file, judicial waiver, or some other process. Finally, in this report, we use the phrase “charged directly in adult court” as a shorthand for “charged in adult court pursuant to Florida’s direct file statute.”

Florida comprises 67 counties, which are organized into 20 judicial circuits. Each circuit organizes its own criminal and juvenile courts, and has an elected state attorney, or prosecutor, and an elected public defender. Human Rights Watch was not able to interview people in every county or circuit. In selecting which jurisdictions to visit, we focused on those circuits with the highest rates of juveniles prosecuted in adult court, but also aimed to include both densely and sparsely populated circuits.

All individuals we interviewed about their experience provided informed consent to participate in the research. Interviews at Sumter Correctional Institution and the Orange County Jail were conducted in private, outside of the hearing of jail and prison staff. An attorney from the Ninth Circuit Public Defender’s Office was present for the interviews conducted in Orange County Jail, since the majority of the children interviewed there had pending cases and were advised not to speak without their lawyer present. We explained to each interviewee that participation in the interview was completely voluntary, that we could not offer any legal advice or other assistance, and that the interviewee could stop the interview at any time. We gave no incentives to interviewees. One individual declined to be interviewed. We ended a second interview shortly after it began when the child being interviewed gave indications that he did not understand what was happening or what the purpose of the interview was.

All interviewees were given the choice of using their real names or a pseudonym. Due to the serious stigma of arrest and conviction, and the possibility that at least some of the children and young people interviewed might not know if their cases could be eligible for sealing, expungement, or pardon in the future, we decided to use pseudonyms for all of the children and young people interviewed except for two: Kiera Wilmot and Veronica Limia. Kiera’s arrest received national media coverage. She and her mother both agreed that her name could be used in this report. Veronica Limia, who was prosecuted directly in adult court at age 17, is now 31 years old and an attorney. Her law school graduation, as well as her background as a child in the criminal system, have been covered in local newspapers, and she gave consent to use her name in this report.

The statistics in this report are all based on data provided by Florida’s Department of Juvenile Justice (DJJ).

In April 2013, Human Rights Watch sent freedom of information requests to state attorneys in all 20 Florida circuits, requesting individual record data for all juveniles charged directly by prosecutors in their adult courts from 2007 until April 2013. State attorneys for the following judicial circuits provided the requested information: 1st Judicial Circuit, 4th Judicial Circuit, 6th Judicial Circuit, 7th Judicial Circuit, 8th Judicial Circuit, 9th Judicial Circuit, 12th Judicial Circuit, and 18th Judicial Circuit. State attorneys for the following judicial circuits claimed that they had no responsive records or were not obligated to provide them by Florida’s public records law: 3rd Judicial Circuit, 6th Judicial Circuit, 11th Judicial Circuit, and 13th Judicial Circuit. State attorneys for the following judicial circuits had not responded to Human Rights Watch’s request by the time of this writing: 14th Judicial Circuit, 15th Judicial Circuit, 16th Judicial Circuit, 17th Judicial Circuit, 19th Judicial Circuit, and 20th Judicial Circuit. State attorneys for the following circuits had indicated an intention to provide the requested information, but had not provided it by the time of this writing: 2nd Judicial Circuit, 5th Judicial Circuit, and 10th Judicial Circuit.

Because some responsive circuits provided individual record level data as per our original request, whereas others provided aggregated data, Human Rights Watch was not able to use that data to compare between circuits. Accordingly, we have relied on the data provided by the DJJ.

Finally, Human Rights Watch asked Florida’s Office of Court Administration (OCA) for data on youth charged directly in adult court by Florida’s prosecutors. The OCA made several attempts to provide responsive data, but their data did not include information on whether individuals were transferred from juvenile court or their ages at the time of offense, making it impossible to extract the information sought by Human Rights Watch.

I. Background

Juvenile Courts in the United States

Since the founding of the world’s first juvenile court in Illinois in the 1890s, legal systems in the United States have recognized that children are different from adults and should be treated differently.[1] While criminal justice has traditionally been understood to achieve four goals—retribution, incapacitation, deterrence, and rehabilitation—adult criminal courts in the United States have become increasingly focused on retribution and incapacitation. Juvenile courts, on the other hand, have always prioritized rehabilitation.[2]

Almost every juvenile court system in the United States has had, since its inception, some form of judicial waiver procedure, whereby a judge could determine when a juvenile should be transferred to adult court.[3] Prior to the 1980s, and consistent with the preference for treating children in the juvenile court, such waivers were rarely used.[4] Beginning in the 1980s, however, at least in part in response to an increase in juvenile crime, nearly every US state made it easier to transfer children from juvenile courts to more punitive adult courts.[5]

The national trend to transfer more juveniles to adult court came at a time when the United States was experiencing a steep escalation in crime rates, including rates of violent crime by adolescents.[6] Politicians and pundits warned about an oncoming wave of adolescent “super-predators,” a term coined by then-Princeton Professor John DiIulio, and deployed in a highly racialized narrative.[7] In a 1995 article, DiIulio warned that “Americans are sitting atop a demographic crime bomb” and predicted that the following decade would “unleash an army of young male predatory street criminals who will make even the leaders of the Bloods and Crips—known as O.G.s, for ‘original gangsters’—look tame by comparison[.]”[8] Youth of color were overrepresented in media portrayals of crime during this period.[9]

The spike in juvenile crime actually had already peaked when DiIulio wrote those words. The apex came in 1994, by which point the violent crime index[10] arrest rate for juveniles had increased over 68 percent from its 1980 level.[11] By 2010, the violent crime index arrest rate for juveniles had plummeted to well below the 1980 level.[12] In 2012, the juvenile violent crime arrest rate hit a 32-year low.[13] DiIulio himself has acknowledged that his dire predictions were wrong, and now advocates for programs and prevention over incarceration.[14] In 2012, he was a signatory to an amicus brief in Miller v. Alabama, the Supreme Court case challenging juvenile life without parole sentences. The brief stated,

The prediction of a juvenile superpredator epidemic turned out to be wrong; in fact, there was no superpredator generation. Professor DiIulio, the original proponent of the juvenile superpredator notion and a signatory to this brief, has repudiated the idea and “expressed regret, acknowledging that the prediction was never fulfilled.”[15]

While there has been some softening of the transfer laws passed in the wake of the “super-predator” hype,[16] many of the most punitive laws remain on the books,[17] despite that fact that transfer to adult court has been linked to an increase in recidivism.[18]

Research has shown the ineffectiveness of punishing children, including teens, as adults in order to deter future crime. A 2007 study by the Centers for Disease Control found that “evidence indicates that transfer to the adult criminal justice system typically increases rather than decreases rates of violence among transferred youth.”[19] A Department of Justice analysis of all transfer studies conducted as of 2010 determined that none had proven that juvenile transfer laws were an effective deterrent to crime.[20] Florida-specific studies have come to the same conclusions. One 2002 study compared 475 youth charged in adult court with 475 youth who remained in the juvenile system and found that “nearly 50 percent of the transfers re-offended after age 18 but only 35 percent of the juvenile cases did[,]” even though the youth charged as adults were similar in age, gender, race, prior record, and seriousness of offense.[21] Further, the transferred juveniles who re-offended were more likely to commit more serious felonies than the non-transferred juveniles.[22]

Shay Bilchik, who served as an assistant toFlorida Attorney General Janet Reno during the height of the state’s use of direct file in the 1990s later acknowledged that “‘[k]ids prosecuted as adults tend to re-offend more quickly, they re-offend for more serious offenses, and they tend to re-offend more often.” Those results, he said, were “the trifecta of bad crime policy.’”[23]

Prosecutorial Direct File: The National Context

Every state has at least one mechanism that allows for the transfer of children to adult court. Most states use judicial waiver, where a judge presides over a hearing to determine whether it is appropriate to remove a child from the jurisdiction of the juvenile court and prosecute him or her in adult court.[24] Both the prosecution and the defense have the right to be heard at a waiver hearing, and the presiding judge considers several factors, including the child’s amenability to rehabilitation, before deciding whether to send a child to adult court for prosecution.[25]

In Florida, the statute governing waiver hearings requires the juvenile court judge to consider factors including the seriousness of the offense, the child’s prior record, and the child’s amenability to rehabilitation before deciding to transfer that child to adult court.[26] At the hearing, the judge will hear from the defense attorney, the Department of Juvenile Justice, the child’s parents or guardians, and the child herself, as well as the state attorney.[27] If the judge decides to transfer the child, that decision must be in writing and can be appealed.[28]

Fifteen states and the District of Columbia also give prosecutors the option, through a process called direct file, to charge juveniles directly in adult court, removing them from the jurisdiction of the juvenile court and thus from further involvement by juvenile court judges in decisions to charge juvenile suspects in adult court.[29] Some of these states, including Florida, also have mandatory provisions requiring the prosecutor to charge certain cases directly in adult court.[30]

Under direct file laws, the prosecutor’s decision is generally made without any oversight from either the juvenile court or the adult criminal court. In nearly all states with direct file laws, the statutes do not provide guidance as to what factors prosecutors should consider in making the decision to charge a child directly in adult court. Even in the few states that provide guidance to prosecutors, there is no way to ensure that the guidance is being followed, as there is often no record of the decision or opportunity to challenge it. Indeed, in the view of the US Department of Justice, “it is possible that prosecutorial discretion laws in some places operate like statutory exclusions, sweeping whole categories into criminal court with little or no individualized consideration.”[31]

Ten jurisdictions, including Florida, give prosecutors discretion to charge a 14-year-old in adult criminal court for some offenses.[32] In Montana, a prosecutor can charge a 12-year-old in criminal court for certain personal offenses. In Nebraska, there is no age limit for certain felonies. In Florida, Nebraska, and Vermont, a prosecutor may choose to prosecute any juvenile starting at age 16 for any felony. In Wyoming, that age drops to 13.[33] Florida even permits youth accused of misdemeanors to be charged as adults under certain circumstances.[34] This patchwork of direct file laws means that a juvenile’s chances of facing such charges, and of facing them without judicial oversight, depend a great deal on where the child happened to commit her crime.

Florida: At the Forefront of Treating Children as Adults

Currently, Florida ostensibly has three mechanisms for transferring children from juvenile to adult court. Two of them, judicial waiver[35] and indictment, which requires a prosecutor to present a case to a grand jury before moving forward with it in criminal court,[36] account for less than 2 percent of cases of children prosecuted in adult court. The third, prosecutorial direct file, which gives prosecutors discretion to file charges in adult court, accounts for approximately 98 percent of cases and is the subject of this report.[37]

Florida has one of the harshest prosecutorial direct file laws in the United States[38] and has transferred more children out of the juvenile and into the adult system than any other state.[39] From 2003 to 2008, Florida transferred youth to adult court at 1.7 times the rate of Oregon, the state with the second-highest transfer rate, and 2 times the rate of Arizona, the state with the third-highest transfer rate.[40] During that period, Florida’s transfer rate was 8 times the rate of California and 5 times the average transfer rate in 12 other states.[41] Florida’s direct file statute is also one of the oldest in the United States—the Florida legislature passed the state’s first direct file law in 1978.[42]

Florida’s Direct File Statute        

Florida’s direct file statute is complex—it has both discretionary and mandatory provisions, and whether a particular case is eligible for direct file depends on the child’s age, charges, and prior history. At its core, however, it allows for a breathtakingly broad array of cases to be brought in adult court at the sole discretion of the prosecutor and without judicial review. The following three cases illustrate this range.

On the morning of April 22, 2013, 16-year-old honor student Kiera Wilmot decided to see what would happen if she mixed a household cleaner and some aluminum foil in a plastic bottle.[43] She conducted her experiment on the grounds of Bartow High School before classes had started.[44] The result? The bottle top popped off, there was some smoke, and Kiera was arrested and charged with “making, possessing, throwing, projecting, placing, or discharging any destructive device,” a felony charge that can be brought in adult court as long as the defendant is 14 or older.[45] Fortunately, Kiera was not immediately charged in adult court (because she was 16, the prosecutor could have done so under Florida’s direct file law) and, after months of public outrage over what many saw as an unjust prosecution,[46] Kiera was permitted to accept a plea to a diversion program in juvenile court.[47] She is relieved to not have an adult felony conviction, but the time between her arrest and the plea was challenging. Her lawyer told her that she was could face up to 10 years in prison if convicted. She had never been in trouble before, and the possibility of incarceration frightened her.[48]

On March 6, 2012, Oliver B. was arrested at his high school, together with two other boys, for breaking into an empty office at the school a week earlier and stealing two laptops, a blackberry, a Palm Pilot, and $8 in cash. Oliver was offered a sentence of 18 months in a residential facility if he pled guilty to juvenile charges. If he turned down the plea, his lawyer warned him, his case would likely be charged directly in adult court, where he could face up to 15 years in prison. Oliver had been in trouble before, for possession of some stolen calculators. In that case, he had pled guilty and been sentenced to juvenile probation. Oliver’s public defender in the high school theft case “pleaded with [him]” to accept the offer and avoid a conviction in adult court, but Oliver maintained his innocence and refused the offer of juvenile sanctions. The prosecutor charged Oliver directly in adult court. Oliver pled guilty and was sentenced to probation.[49]

On December 31, 2009, 16-year-old Kenneth Ray Stephens and two friends stole a gun from a parked car.[50] The following week, Kenneth and a friend were together in a house when two other teenagers in a different room of the house heard a gunshot, then heard Kenneth yell the victim’s name and start to cry.[51] The victim, while badly injured by a gunshot wound to the head, survived.[52] Prosecutors disagreed with Kenneth’s claim that the shooting was accidental, charging him in adult court with attempted murder. It was Kenneth’s first arrest. At the time of his arrest, he was an honor roll student and member of the football team. No judge had the power to review the decision to charge Kenneth in adult court. Facing a 30-year maximum sentence on the attempted murder charge, Kenneth eventually pled to aggravated assault in exchange for a 15-year sentence. The Florida Department of Corrections has listed his release date as January 2, 2025.

Under Florida’s direct file statute, prosecutors had discretion to charge Kiera, Matthew, and Kenneth directly in adult court without any judicial review of the appropriateness of adult court.

Initially introduced in 1978, Florida’s legislators expanded the reach of the direct file statute several times during the 1990s.[53] Florida’s current direct file law has both discretionary and mandatory provisions. The discretionary provision allows prosecutors to file charges directly against any child aged 16 or older in adult court “when in the state attorney’s judgment and discretion the public interest requires that adult sanctions be considered or imposed.”[54] Children 16 or older charged with a misdemeanor may also be tried in adult court if they have had 2 prior delinquency adjudications or adjudications withheld,[55] at least one of which was for an act that would be considered a felony in adult criminal court. It also allows prosecutors to directly charge 14- and 15-year-olds in adult court for any of 19 enumerated felonies—California is the only state with a longer list of felonies that make a 14-year-old eligible for adult court.[56] In none of these “discretionary” provisions does the statute provide guidance or set forth limitations on the prosecutor’s power.

The mandatory provision outlines four circumstances in which a prosecutor “shall” direct file a child: (1) any 16- or 17-year-old who is charged with a violent crime against a person[57] and who was previously adjudicated, or found guilty,[58] of “ the commission of, attempt to commit, or conspiracy to commit murder, sexual battery, armed or strong-armed robbery, carjacking, home-invasion robbery, aggravated battery, or aggravated assault[;]”(2) any 16- or 17-year-old charged with a forcible felony[59] who has three prior felony adjudications in juvenile court;[60] (3) any child of any age who is accused of any crime involving theft of a motor vehicle “and while the child was in possession of the stolen motor vehicle the child caused serious bodily injury to or the death of a person who was not involved in the underlying offense[;]” and (4) any 16- or 17-year-old who is charged with committing certain crimes while in possession of a weapon or other destructive device.[61]

Notwithstanding these mandatory provisions, the statute also provides that the prosecutor may at any time keep any case in juvenile court if she “has good cause to believe that exceptional circumstances exist that preclude the just prosecution of the child in adult court.” The statute provides no guidance as to what those exceptional circumstances might be.[62]

Prosecutors must also charge a child in adult court when she was previously charged and sentenced as an adult. Under the “once an adult, always an adult” provision of Florida’s direct file statute, once a child is sentenced as an adult, that child will automatically be tried in adult court for any subsequent offense, no matter how minor.[63] For example, a 15-year-old who steals a car for a joy ride could be charged with grand theft in adult court, since grand theft is one of the 19 enumerated felonies for which 14- and 15-year-olds can be tried as adults. Stealing a car is a third degree felony,[64] punishable by up to five years in prison.[65] If, a year later, that same child steals a bag of chips from a grocery store, any larceny charges brought against her would have to be filed in adult court.[66]

Direct file has almost entirely displaced judicial waiver in Florida, as the data below shows.[67] Human Rights Watch’s interviews for this report bear out the statistics: when asked if he ever requested judicial waiver hearings, one prosecutor responded “why would I?”[68]

Which Children Are Being Prosecuted in Florida’s Adult Courts?

Types of Offenses

According to new analysis of Florida data conducted by Human Rights Watch for this report, more than 12,000 juveniles were arrested for crime and transferred from Florida’s juvenile justice system to the adult system in the five-year period from fiscal year 2009 to fiscal year 2013, an average of 2,420 juveniles annually. The vast majority of those cases—97.8 percent—reached adult court via direct file. In 2012-13, that figure was 98.3 percent. Thus, while the discussion of data that follows in this section embraces all transfer cases, it is important to recall that the vast majority of those cases are children charged as adults pursuant to Florida’s direct file statute.[69]

Each year, an average of 3.6 percent of juveniles who are arrested in Florida will have their cases transferred to the adult system. While the overall number of transfers has decreased by 53.2 percent over the past five years, this is mainly due to a 40 percent decrease in the overall number of youth entering the juvenile justice system (“juvenile arrests received”) during the same time period. The percentage of juveniles arrested who are prosecuted in the adult system (“juveniles transferred”) has remained steady even as violent crime rates have fallen.

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Over the last five years, property felonies and violent felonies each accounted for 39 percent of charges for which youth were sent to adult court. Drug felonies made up 8 percent of transferred offenses, followed by misdemeanors at 4 percent, and “other felonies” at 1.2 percent.[70] Of youth transferred to the adult system between 2008-09 and 2012-13, most were arrested for burglary (27.6 percent) and armed robbery (15.7 percent).

Table 1: Offenses of Transferred Youth (2008-09 - 2012-13)

The vast majority—93.1 percent—of children charged in adult court are boys. Less than 1 percent of the girls who enter the juvenile justice system are sent to adult court compared with nearly 5 percent of boys. In sheer numbers, there are over 13 times more male youth transferred than females. There are only 2.2 times as many arrests of boys than of girls. We were not able to assess the extent to which the differences in transfer rates for girls were due to the nature of the offenses for which they were arrested or other factors.

Figure 2, below, shows that children are prosecuted in adult court approximately as often for property crimes as they are for violent felonies. In other words, transfer to adult court is not limited to the most heinous crimes. This finding is consistent with a study conducted in Florida in the late 1990s that concluded that the children directly charged in adult court were not consistently the most serious offenders.[71]

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Our analysis further reveals that direct file is also not being reserved for those who are at the highest risk for reoffending according to the Department of Juvenile Justice’s risk assessment tool.[72] Many of those charged directly in adult court by Florida’s prosecutors are not categorized as being at “high” risk to re-offend. In fact, over the five years for which Human Rights Watch was able to obtain data, nearly two of every five youths directly charged in adult court were categorized as being at “low” or “moderate” risk to re-offend. In contrast, less than one-third were categorized as being at “high” risk to re-offend.

According to our analysis, where children directly charged in adult court fall along the risk-to-reoffend continuum varies widely among Florida’s 20 judicial circuits, with prosecutors in some circuits charging far more low-risk children than others. In 5 of the 20 circuits (the 1st, 3rd, 4th, 15th, and 18th), more of the children charged directly as adults were categorized as being at “low” risk to re-offend than as being at “moderate,” “moderate-high,” or “high” risk to reoffend. In 10 of the 20 circuits, by contrast, more were in the “high” risk to re-offend category than in the other categories.

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Racial Disparities

Our analysis reveals that black boys make up 27.2 percent of children received by the juvenile justice system (arrested and initially sent for processing to the Department of Juvenile Justice), but account for 51.4 percent of transfers to the adult system. White boys make up 28 percent of children received by the juvenile justice system, but account for only 24.4 percent of transfers.

Table 2: Gender and Race of Arrested and Transferred Youth (FY 2008/09 - 2012/13)

A simple explanation for this racial disparity might be that the crimes of black boys are more serious than the crimes of white boys. To that end, we analyzed for this report whether black and white youth arrested for similar crimes are transferred to adult court at similar rates. For some crimes, such as murder and property crimes, the transfer rates do seem to be similar (see Appendix B). For others, however, there is a marked disparity. Black boys, for example, are significantly more likely than white boys to be transferred to adult court after being arrested for violent offenses other than murder: from fiscal year 2008 to fiscal year 2013, 13.3 percent of black boys were transferred to adult court whereas only 7.4 percent of white boys were transferred following such arrests.[73]

In the graph below, if black and white arrests were transferred at similar rates, the circuits should be clustered close to (both slightly above and slightly below) the line. Yet, every circuit lies below the line, indicating that each and every circuit in the state transfers black youth arrested for violent felonies at higher rates than white youth arrested for violent felonies.

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The graph shows that the 17th Circuit lies closest to the line, indicating that although it transfers black youth arrested for violent felonies to adult courts at higher rates than white youth, the rates are very close to each other. The 16th Circuit lies furthest from the line, indicating the largest racial disparity for violent felony arrest transfer rates.[74]

We found similar racial disparities in drug felony arrests. In the graph below, every circuit lies below the line, indicating that each circuit transfers to adult court black youth that have been arrested for drug felonies at higher rates than white youth arrested for drug felonies. We find the highest disparity in the circuit that transfers the second highest number of drug felony arrests in the state: the 13th Circuit transferred 8.8 percent of white youth arrested for drug felonies and 30.1 percent of black youth arrested for drug felonies.

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For both the violent felony and drug felony racial disparity analyses, the available data do not allow us to more closely examine the nature of the offenses (e.g., drug quantities) or criminal histories of the offenders, which may offer some explanation for these disparities.[75] Despite the absence of those details, the consistency and size of these racial disparities are concerning.[76]

II. Do Children Belong in the Adult
Criminal Justice System?

Children are Different

It is axiomatic that children are in the process of growing up, both physically and mentally. Their developing identities make young people, including those convicted of crimes, excellent candidates for rehabilitation: they are far more able than adults to learn new skills, embrace new values, and re-embark on a new, law-abiding life. Justice is best served when these rehabilitative principles, at the core of human rights standards, are also central to the process afforded children accused of breaking the law. The justice system must take into account both the gravity of the charged crime as well as the culpability or blameworthiness of the offender. The question of culpability is part of what separates children from adults. While children can commit acts as violent and deadly as those adults commit, their blameworthiness is different by virtue of their immaturity. Their punishment, and the adjudicative process to which they are subjected, should acknowledge that substantial difference. International law recognizes these differences and expresses a strong preference for using juvenile courts to deal with cases of children accused of breaking the law.[77]

Children may know right from wrong: proponents of transfer provisions for children correctly point out that most children can tell us that it is wrong to steal. But by virtue of their immaturity, children have less developed capacities than adults to control their impulses, to use reason to guide their behavior, and to think about the consequences of their conduct. They are, in short, still “growing up.” Removing children from the juvenile system and placing them into the adult criminal system negates that reality, treating children as though their characters are already irrevocably set.

The Difference According to Psychology and Neuroscience

Psychological research confirms what every adult knows: children, including teenagers, act more irrationally and immaturely than adults. Psychologists have long attributed the differences between adults and children to either cognitive or psychosocial differences. Cognitive theories suggest that children simply think differently than adults, while psychosocial explanations propose that children lack social and emotional capabilities that are better developed in adults.[78]

A large body of research has established that adolescent thinking is present-oriented and tends to either ignore or discount future outcomes and implications.[79] At least one researcher has found that teenagers typically have a very short time-horizon, looking only a few days into the future when making decisions.[80] Another study concluded that only 25 percent of 10th graders (whose average age is 16), compared to 42 percent of 12th graders (whose average age is 18), considered the long-term consequences of important decisions.[81] To the extent that adolescents do consider the implications of their acts, they emphasize short-term consequences, perceiving and weighing longer-term consequences to a lesser degree.[82]

Psychological research also consistently demonstrates that children have a greater tendency than adults to make decisions based on emotions, such as anger or fear, rather than logic and reason.[83] Studies further confirm that stressful situations only heighten the risk that emotion, rather than rational thought, will guide the choices children make.[84] In the most emotionally taxing circumstances, children are less able to use whatever high-level reasoning skills they may possess, meaning that even mature young people will often revert to more child-like and impulsive decision-making processes under extreme pressure.[85] All of these differences mean that children, including teenagers, are not as deterred by the threat of criminal punishment as adults are.[86]

Neuroscientists using magnetic resonance imaging (MRI) to study the brain are now providing a physiological explanation for the features of childhood that developmental psychologists—as well as parents and teachers—have identified for years. These MRI studies reveal that children have physiologically less-developed means of controlling themselves.[87]

A key difference between adolescent and adult brains concerns the frontal lobe. Researchers have linked the frontal lobe (especially a part of the frontal lobe called the prefrontal cortex) to “regulating aggression, long-range planning, mental flexibility, abstract thinking, the capacity to hold in mind related pieces of information, and perhaps moral judgment.”[88] The frontal lobe has also been linked to the ability to evaluate potential risks and rewards.[89] In children, the frontal lobe has not developed sufficiently to perform these functions. Throughout puberty, the frontal lobe undergoes substantial transformations that increase the individual's ability to undertake decision-making that projects into the future and to weigh rationally the consequences of a particular course of action.[90] MRI studies have also confirmed that adolescents are more likely to engage in risky behavior when in the presence of peers.[91]

These cell and neural developments in the brain provide an anatomical basis for concluding that youth up to age 18 are, on average, less responsible for criminal acts than adults. As Daniel Weinberger, director of the Clinical Brain Disorders Laboratory at the National Institutes of Health, explains, the developed frontal lobe, including its prefrontal cortex, “allows us to act on the basis of reason. It can preclude an overwhelming tendency for action…. It also allows us to consciously control our tendency to have impulsive behavior.”[92]

In addition, because their frontal lobe functions poorly, adolescents tend to use a part of the brain called the amygdala during their decision-making.[93] The amygdala is a locus for impulsive and aggressive behavior, and its dominance over the undeveloped frontal lobe makes adolescents “more prone to react with gut instinct.”[94] In adult brains, the frontal lobe offers a check on the emotions and impulses originating from the amygdala.[95]

The Difference According to Florida Youth

Many of the youth directly charged in adult court interviewed for this report were, in retrospect, acutely aware of the ways in which their young age and lack of maturity affected their decision-making capabilities at the time of their crimes.

Luke R., serving a 3-year prison sentence for robbery, reflected upon the choices he’d made. “I was impulsive. I wouldn’t think about the consequences.”[96] Another young man, now 22 and still on probation for a crime he committed when he was 17, reflected that, “I don’t do the same things I was doing. I think about things before I do them.”[97] Ava L., who was arrested at 17 for drunk driving, said that “It didn’t hit me until I turned 19 that I need to get my life together and I feel like I got [it] together but it’s still on my record.”[98] Janine C., a 17-year-old who served a one-year jail sentence after pleading guilty to a burglary she had committed when she was 16, pointed out that, for juveniles, “the light bulb could still go off.”[99]

The idea that teenagers are in the process of maturing and able to be rehabilitated was also mentioned repeatedly.

• “I’d never done anything like that before. I don’t think they understood that everyone makes mistakes. Everyone does something bad once.”[100]
• “I don’t think kids should be in adult prison, what they need is a deeper route through the juvenile system so that kids can really change.”[101]
• “You know everybody makes mistakes, you learn as you go on.”[102]

Parents and family members agreed. Stephanie G., Thomas G.’s mother, said about direct file, “They are young. They need some guidance. Kids do stuff all the time and a lot of time they don’t know what they’re doing or why.”[103] One judge who has presided over juvenile court for 14 years observed, “I’ve been here long enough to understand that when someone is 16 and I ask them why they did it and they say ‘I don’t know,’ I believe them.”[104]

III. Rights Put at Risk by Direct File

Charging Decisions: Opaque and Unlimited Discretion

The direct file law does not adequately take into account the best interests of the child, is difficult for children to understand, and produces arbitrary results.

So perfunctory is the process that many young people Human Rights Watch spoke to had no idea what was happening until they were taken from juvenile detention to adult jail. “When they came to get me I thought I was going home,” one youth recalled, “instead they took me to county jail!”[106]

Langston T. realized that he was being tried in adult court only when he appeared at his bond hearing in criminal court. “Before that I didn’t even know you could go to county [jail]. I thought you had to be 18,” he said.[107] When asked to explain what direct file was and how the process worked, Langston said “I think direct filed is charged as an adult. I don’t know who decides.”[108]

Kingston S. was also unaware of what direct file was prior to being transferred. “This whole time I thought, ‘I’m a juvenile, I go to juvenile court.’ I didn’t want to go to the county jail. I first heard the words direct file at my bond hearing over the TV [many bond hearings are conducted over television feeds between the courthouse and the jail].”[109]

Each of Florida’s 20 state attorneys’ offices is free to determine its own criteria and practices for making direct file determinations. As a result, practices vary widely. For example:

• The 4th Circuit (which includes Clay, Duval, and Nassau counties) has written guidelines which track the direct file statute closely.[110] The discretionary direct file section of the guidelines includes all of the enumerated felonies found in the statute except for murder, which the 4th Circuit guidelines consider to be a mandatory direct file charge.
• In the 8th Circuit (which includes Levy, Baker, Union, Bradford, Alachua, and Gilchrist counties), the juvenile division chief state attorney consults with the chief assistant state attorney, who has the final say in direct file decisions. The elected state attorney may also be consulted. In deciding whether to direct file, the 8th Circuit state attorney considers the age of the child, the nature of the crime, and the child’s record. “We’re a small legal community. We listen to the defense attorneys. It’s not policy to hear from them, there’s not a formal process.”[111]
• In the 11th Circuit (which consists entirely of Miami-Dade County), the juvenile division chief state attorney reviews every juvenile case and makes a determination of whether to file a notice of intent to direct file, based on the child’s age and prior record, as well as the nature of the charges.[112] Once the notice of intent has been filed, if the defense indicates an interest in entering a plea in juvenile court, the case is set for a “multistaffing,” or meeting that includes the prosecutor, defendant, defense counsel, and representatives from the Department of Juvenile Justice. If all parties agree on a disposition, the case remains with the juvenile court.[113]
• In the 17th Circuit (which consists entirely of Broward County), two assistant state attorneys, the assistant state attorney in charge of the juvenile division, and a junior colleague review every case considered for direct file and make the final determination, with input from the elected state attorney in high profile cases.[114] Maria Schneider, the attorney-in-charge of the juvenile division, says that her office files a “notice of intent to review for direct file” in cases where the charge is a violent crime against a person or the defendant has an “extremely long record” or is about to turn 18.[115]
• In Tampa, Florida, there is no single person or team tasked with making direct file determinations.[116] The intake state attorney who gets the case makes a determination in consultation with her division chief or with the juvenile bureau chief in the state attorney’s office (there are “eight or nine regular intake divisions”).[117]

Judges and defense attorneys throughout the state describe direct file decisions as haphazard. The use of direct file is “basically arbitrary, as I see it,” said Judge Henry Davis, who presides over juvenile court in Jacksonville, Florida, which is part of the 4th Circuit.[118] Judge Davis stated that he did not “know whether there’s any consistency. I don’t see a pattern.”[119] Buddy Schulz, a Jacksonville private attorney who has done pro bono work on children’s issues for decades, told us that he has started receiving many more calls from judges asking him to take on juvenile cases directly charged in the adult courts in the last five years, and has handled over a dozen such cases in that time period.[120] Mr. Schulz told Human Rights Watch he saw “no rhyme or reason” to determinations of which cases should be directly charged in adult court. One public defender who practices in the 10th Circuit noted prosecutors do not have “real guidelines.” She said that “if they just don’t like a kid they can direct file. If they don’t want to go to trial they can direct file. It shouldn’t be for just any reason.”[121]

In Jacksonville, defense attorneys stated that prosecutors choose to directly charge children in adult court “more on a whim and more for leverage.”[122] They said that prosecutors in Jacksonville were loath to litigate in juvenile court. “If there’s any kind of suppression issue [like a defendant’s claim that evidence against him was wrongfully obtained], they’ll send it up [to adult court],” said one Jacksonville defense attorney.[123] The Jacksonville defense attorney said that, in one instance, prosecutors had indicated that they had reviewed a case for direct file and decided to keep it in juvenile court. The case proceeded in juvenile court, but, after the defendant turned down several pleas and requested a trial, the prosecutor announced that they were once again reviewing whether the case should be directly charged in adult court.[124]

Other lawyers described the system as valuing consistency over individualization by subjecting all crimes within certain categories to direct charge in adult court. “Here, their attitude is if you’re 16 or 17, and you burglarized a house, they’re going to direct file you. If you steal a car, they’re going to direct file you,” said one Tampa (13th Circuit) public defender, “anything with a gun they’ll direct file.”[125] Representatives of the 13th Circuit state attorney’s office denied that they automatically direct filed all gun cases, but said the presence of a gun was a factor they considered.

Teenagers themselves were much less clear about what charges could land a person in adult court. One teenager who was awaiting trial in Orange County Jail had heard about direct file because he had “seen other people from [the juvenile detention center] get direct filed.”[126] In his mind, “[i]f you had a serious charge you could go to the adult place.” He had no idea that he was eligible to be charged directly in adult court until he was picked up from the juvenile detention center and taken to the adult jail. “I felt bad,” he recalled. “I didn’t know where I was going. It was a third degree felony and I thought you only went in [to adult jail] for murder and stuff.”[127]

Young people who spoke to Human Rights Watch overwhelmingly felt that direct file decisions were arbitrary. Many people interviewed for this report did not even know that the prosecutor made the decision to send them to adult court. One child thought he had been charged directly in adult court because “the [juvenile] judge got tired of seeing me.”[128] Another young person, who was 14 years old at the time of arrest, said in a letter to Human Rights Watch that “I was prosecutorial direct file by my juvenile judge which was my adult judge best friend.”[129] Those who did know that the prosecutor was responsible for the decision criticized the process as biased. “I feel like the prosecutor’s one-sided,” said one teenager who was on probation for a robbery attempt. “I feel like if anybody should do that it’s the judge. The judge is supposed to try to mediate. The prosecutor’s all for the state.”[130] Kyle F., who is serving three-and–a-half years after pleading guilty to a robbery charge, said, “you can’t put that much control in one person’s hands.”[131]

The lack of a review mechanism for direct file decisions compounds the problems caused by giving prosecutors such broad discretion.[132] Most prosecutors interviewed for this report felt that their responsibility to the “community” that elected them was an appropriate check on broad prosecutorial discretion to charge children directly in adult court. When asked about the potential for a prosecutor to abuse her discretion, Maria Schneider, head of the juvenile division of the 17th Circuit state attorney’s office, said “that’s always a threat in criminal justice. That’s why the community has to get involved.”[133] William Cervone, the elected state attorney for the 8th Circuit of Florida, stated that prosecutors are in a better position to make direct file determinations because they better reflect “the community perspective. Community members can come into my office and meet with me,” he said, “judges don’t really do that.”[134] Todd Bass, the juvenile division chief for the 11th Circuit, which consists entirely of Miami-Dade County, stated that, “We are the only agency that is both responsible for the wellbeing of the child and the best interest of the community.”[135]

Whether a state attorney’s office is opting for direct file arbitrarily, as a matter of convenience to avoid juvenile court litigation, or automatically transferring all children charged with certain crimes, children’s protected status or capacity for rehabilitation is not taken into account. Many young people interviewed for this report seemed to understand this, and felt a sense of injustice and hopelessness as a result. Luke R. described feeling hopeless once in adult court, saying, “I’ve seen people, juveniles [get in trouble] three, four times and never get prison. I never had a felony on my record [and they sent me to adult court]. I may as well just quit, that’s how I felt.”[136] John C. felt similarly hopeless when he found out he was being charged in the adult system. “I felt like my life was gone,” he said. [137]

Judge Janet Ferris, a retired judge who began her career as a prosecutor, oversaw hundreds of juvenile cases during her 11 years on the bench. She described the current direct file system as one in which “the state attorney holds all the cards and everyone else is scrambling.”[138] “As long as you’re giving one party all the tools,” she said, “that’s not justice.”[139]

Arbitrary Use of Direct File and Resulting Disparities

As the data below shows, there is enormous diversity among Florida judicial circuits in transferring children to adult court. While Florida state transfer data does not distinguish between juvenile court transfers to adult court and cases filed directly by prosecutors in adult court, remember that the latter cases account for 98 percent of all transfers, allowing one to draw fairly robust conclusions about direct file cases even though the direct file cases are not separated out in the data.

For example, 1,436 youth were transferred to adult court in the 13th Circuit during fiscal years 2008 to 2012, whereas only 27 were transferred in the 16th Circuit during the same time period.

Table 3: Percent of Arrests Transferred by Circuit (FY 2008/09 - 2012/13)

The variance among circuits in the percentage of youth transferred to adult court is not clearly correlated with the seriousness of youth crime in the circuit. The average annual rate at which circuits transferred arrested youth to adult court ranged from 1.5 percent of arrested youth transferred in the 20th Circuit to 6.6 percent in the 15th Circuit. We examined the relationship between the percentage of youth arrests that are transferred and the percentage of youth arrests that are violent in each circuit to determine whether circuits with more serious crime transfer children to adult court at higher rates. There appears to be no significant correlation between these two factors and no linear relationship between them.[140]

As the below graph illustrates, if there were a linear relationship between criminality and transfer rates, we would expect circuits to be plotted along an ordered line. In other words, if the decision to transfer a child to adult court has to do with the violence of the crime, we would expect to see the trend in a plot that shows the percentage of transferred youth arrests increasing as the percentage of violent youth arrests increases. Instead, circuits are plotted in a nonlinear, jumbled order.

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Of even greater concern are the tremendous discrepancies in the punishment received by transferred youth. For example, the 4th Circuit sentenced 74.3 percent of transferred youth to adult jail or prison time; by contrast, the 11th Circuit sentenced 11.9 percent of such children to adult jail or prison time. Human Rights Watch compared these outcomes to possible differences in population size, rate of transfer to adult court, and whether the transfers to adult court involved crimes of violence, and in each case found the punishment rates unrelated to these factors.

If the violent nature of a child’s offense or the population size of her town or city cannot explain disparities among Florida’s circuits regarding the decision to prosecute children in adult court or what sentences children receive upon conviction, it is clear something else must be at play. While we cannot reach a definitive conclusion, the data suggest that these differences are rooted in the way Florida’s prosecutors choose to exercise their considerable discretion.

Proceedings Not Tailored to Children

Due process in a criminal prosecution is meaningless if the person charged does not understand the proceedings. Most young people interviewed for this report described adult court as a baffling place. Matthew N. acknowledged that “in adult court there was a lot I didn’t really understand.”[141] Even the bond hearing, where the only decision being made is whether and how much bail to set, was confusing to many. Florida law allows for bond hearings to be conducted over an audiovisual feed rather than in person, which can compound the confusion. Luke R., when asked about his bond hearing, said that all he remembered was “big words.”[142] Kingston S. recalled that his bond hearing “was scary for me because my father and attorney weren’t there with me. You had to see them through a screen.”[143] Kingston’s comprehension did not increase as the proceedings went along. “No one explained to me how direct file works. Even after I heard the words, I didn’t know what it meant,” he said.[144]

For some of the young people Human Rights Watch spoke to, the incomprehensibility of adult court proceedings stood in stark contrast to the more easily understood juvenile proceedings they had experienced before. Samuel H., who was subjected to direct file and convicted of grand theft for having stolen jewelry at age 16, compared his experiences in adult court and juvenile court:

Here [in adult court], they use all these types of big words and you don’t really comprehend. They’re talking about you but you don’t know what they’re saying. In juvenile court, they’ll ask you if you understand and they’ll actually break it down for you. Here you’re just lost until your attorney sees you…[145]

The pace of criminal court and the lack of parental participation in proceedings also hampered juveniles’ ability to understand what was going on. “They don’t take the time to explain what’s going on—they just want to get you in and get you out as soon as possible. If they had taken the time to explain, that would’ve been better,” said Luke R. who was charged directly in adult court and pled guilty to a burglary committed two months after his 17th birthday.[146] “In juvenile the judge would ask my mom how I’m doing and actually listen to her,” recalled Samuel H., who, when he spoke to Human Rights Watch, was in jail for violating a probation sentence he had received for a burglary he committed at age 15.[147] “Here, you’re only in the courtroom for five seconds, and you have to get up at like 4 in the morning [to get to court from jail].”[148] For Keith L., in juvenile court it “felt comfortable to have my mom next to me. [In criminal court] it felt different. Like I’m by myself or something.”[149]

Young defendants also perceived a difference in terms of how the people in charge treated them in adult versus juvenile court. Matthew N. observed,

In juvenile court, I felt like the judge cared a little more than adult court. In adult court you could tell there were a lot of people coming through so the judge didn’t really care about your case other than what the charges are, and the prosecutors were just trying to give you as much time as they can.[150]

Regarding who controlled each process, Matthew stated that “in juvenile court I didn’t really deal with the prosecutor. The judge does more. In adult court the prosecutor does more.”[151] In John C.’s experience, the juvenile court judge was much more understanding than judges in criminal court: “He didn’t treat me like I was a menace to society. He actually treated me like I wasn’t a piece of shit who deserved to do a long time. He treated me like a kid who had made a mistake.”[152]

Mark V. had a similar opinion regarding the differences in juvenile and adult court judges, saying that “[j]uvenile judges were a little bit more open to what I had to say. They always were looking for alternatives to incarcerating me. This judge [in adult court] looked at me like I was an animal.”[153] Sander A. observed that “in adult court, they want to lock us up. In juvenile court they want to help us make better choices.”[154] Manuel R. felt that in adult court “it seemed like their only plan for me was to take me away for as long as they could and just put me right back in the streets.”[155] Jacob M. agreed that, in adult court, “it seems like they want you to do more time.”[156]

Parents are often as bewildered as their children by the process in adult court, which is not tailored to the needs of their children and, unlike the juvenile court process, does not treat parents as active participants in their children’s lives. Parents who spoke to Human Rights Watch explained that they were confronted with an adult court system where they did not necessarily have any input into their child’s case. Michelle Stephens’ son, Kenneth, pled guilty to shooting a friend, an act which Kenneth maintains was accidental. When Kenneth’s case was still in the juvenile division, Michelle remembers an orderly process that differed markedly from the chaos she encountered in adult court:

When he was in [juvenile court], when he showed up to court, the bailiff would check to see if you [the family members] are here, how many people you have. He’d check the list. When your child’s case was called, you could go and stand with your child. As soon as [Kenneth] was [subject to direct file], we had to go to adult court. It was crazy. Nobody was keeping a list. The first time we went, the court was full and they wouldn’t let us in. Finally [Kenneth’s] lawyer came out and got us. Seeing all of the adults there was very scary. You sit in there, you can’t hear. They’re talking about my son and I can’t hear anything. Next thing you know it’s over and I had no idea what just happened.[157]

The mother of Thomas G. similarly remembered adult court as “more stressful”[158] than juvenile court. Victoria C., the grandmother of Jarvis J., thought that adult court was a humiliating experience. “Walking into adult court, I felt shame,” she recounted. “We had people behind us talking about how he must’ve done something really bad if he was so young and in adult court.”[159] Oliver B.’s mother, Christina, remembers her first day in adult court as “scary. I was crying the whole time.” She said that “criminal court was mean. The judge was very intimidating. When [Oliver] said he wanted to fight the case, he looked at [Oliver] like he was crazy. He said ‘did you know you can get 15 years for this?’”[160] Her son eventually pled guilty, resulting in an adult felony record and a sentence of three years’ adult probation.

Children Under Pressure to Plea

The pressure to plea affects both adults and children in the US criminal justice system.[161] However, due to the developmental factors discussed earlier, juveniles are particularly ill-suited to handle this pressure.[162] One 2003 study examining trial competency among a sample of 1,393 children and young adults found that the ability to comprehend trial proceedings was lower among younger people—children aged 11-13 demonstrated lower levels of comprehension than did 14-15 year olds, who in turn demonstrated lower comprehension than 16-17 year olds. When presented with identical hypothetical plea scenarios, younger participants were significantly more likely to plead guilty than were older participants. The study also found that people 17 and younger are more likely than people aged 18-24 “to make choices that reflect a propensity to comply with authority figures, such as confessing to the police rather than remaining silent or accepting a prosecutor’s offer of plea agreement.”[163]  

Conversely, a juvenile’s reduced capacity to effectively weigh risks can also result in turning down a favorable plea offer.[164] In a law review article discussing the difficulties of counseling young clients in plea negotiations, Abbe Smith, a defense attorney and law professor, described the reluctance of one teenaged client (“Benny”) to accept a very favorable plea offer:

It was hard to know what exactly was going on with Benny. Consistent with what we know from developmental psychology, Benny seemed to overestimate rewards (“I ain’t takin’ no plea cause we’re gonna beat this case and then I’m goin’ home.”) and underestimate risks (“Nobody will believe that crackhead complainant.”). Although we didn’t know whom exactly he was talking to about his case, he seemed to be influenced by his peers in the jail (“Everyone here is sayin’ I should fight the case, not take no plea.”). He seemed utterly incapable of considering and weighing the long-term consequences of rejecting the plea offer because he could not fathom being in prison for any period of time. (“Two years? I might as well be locked up for seven. Ain’t no difference.”).[165]

Regardless of whether a teenager’s immaturity manifests itself as a proclivity to take unfavorable pleas or to refuse favorable pleas, plea decisions are particularly challenging for children who might feel extra pressure in the context of a threat by the prosecutor to charge them directly in adult court.

In the direct file context, the pressure to plea arises both before charges are filed in adult court and afterwards. Prior to bringing adult charges, there is tremendous incentive for juveniles to take pleas, even pleas that involve confinement, in order to avoid being charged in an adult system where they face much longer sentencing exposure and an adult felony conviction. We have no way of knowing how many children accept unfavorable pleas in the juvenile court in order to avoid adult court and criminal sanctions. We know that fewer than 5 percent of juvenile delinquency cases go to trial.[166] It was not possible to identify and interview juveniles who pled guilty in juvenile court for the sole purpose of avoiding a prosecutor’s threat to charge them directly in adult court.[167]

In the context of a threat to file charges directly in adult court, the pressure to plea stems from the differential between juvenile court and adult court sanctions and the long-term consequences of an adult conviction. A juvenile court judge has a range of sentencing options, the most severe of which is sending the child to a “maximum risk” juvenile residential facility for 36 months. Those sentencing options are geared toward rehabilitation, with programs provided even in maximum risk facilities. In Florida, juvenile records are sealed automatically once the defendant turns 24 or 26, depending on the defendant’s offense history. In contrast, adult court judges can, and often must impose very lengthy sentences due to mandatory minimum sentencing laws. Youth convicted in adult court must also contend with an adult criminal record for the rest of their lives. While adult court judges also have the option to impose juvenile sanctions in many cases, they do not often exercise this option, as discussed below.

In some jurisdictions, children are explicitly threatened to either agree to placement in a maximum or high-risk juvenile facility or face charges in adult court.[168] Harry Shorstein, who served as the elected state attorney for the 4th Circuit from 1991 until 2008 and who is in private practice in Jacksonville, stated that using a direct file threat to obtain a plea “…is prolific here. The policy is to overcharge everyone with the idea of extracting a plea.”[169] A public defender in Tampa observed that “[prosecutors will] say, we’ll keep it in juvenile if you take a plea.”[170] 

Even where the threat is not explicit, the possibility of direct file is often enough to cause defendants to feel tremendous pressure. One Miami public defender explained, “the moment they announce intent to direct file, the kid coughs up a plea.”[171] According to that same public defender, children often plea specifically to avoid a charge in adult court, and do so before they or their lawyer has even had a chance to obtain discovery of evidence from the prosecutor, without which it is difficult to weigh the advisability of going to trial.[172]

Another lawyer commented on the lack of influence defense attorneys in the juvenile division have when prosecutors have unfettered power to directly charge a child in adult court. A juvenile defense attorney cannot challenge the direct file decision, and is left with only two options: accept a guilty plea in juvenile court (assuming one is offered), regardless of whether the case presents any issues worthy of trial, or allow the child to be moved to adult court, where she will be assigned an adult-division lawyer. “As an attorney, I feel like I’ve lost when I hear ‘direct file’ because there is nothing else I can do for this child,” said one attorney in the juvenile division of the Jacksonville public defender’s office, “I no longer have a chance to fight for this kid.”[173] Defense attorneys feel particularly powerless because the consequences in the adult system are so serious. “It’s such a major disparity between the juvenile and adult sanctions that you basically have to bend and agree to everything, no matter how unreasonable,” said one attorney. “The risk of rolling those dice—I think it’s safer to play Russian roulette with a loaded revolver than it is to willingly go to direct file.”[174]

One study by Florida’s Department of Juvenile Justice (DJJ) found that, perversely, children whose risk of reoffending makes them the least deserving of punitive time in custody are the ones more likely to accept pleas. The study found that youth at low risk of reoffending were more likely than high-risk youth to accept pleas involving time in a residential facility, bypassing the opportunity to have the Florida Department of Juvenile Justice asses the youth and provide a sentencing recommendation.[175] While the DJJ study did not examine the role of direct file threats in these decisions to plead guilty, the direct file threat may well influence the plea decisions made by low-risk youth. A recent article in Florida Times-Union came to the conclusion that threats of prosecution under the direct file statute were influencing plea decisions in Jacksonville-area juvenile courts.[176] According to data obtained by that journalist, the 4th Judicial Circuit (which includes Jacksonville) sentenced more children to residential facilities than any other circuit, many of them through plea agreements.[177] An estimated 4 out of 5 children in Jacksonville who agreed to plea deals in juvenile court involving residential placement did so after being threatened with prosecution in adult court.[178]

Children are also making pre-file plea decisions in the absence of complete information about their cases. Because of the fact that a child can only be held in the custody of the Department of Juvenile Justice for 21 days and prosecutors seem reluctant to have people released, most of the young people interviewed for this report were charged directly in adult court close to that 21st day. In practice, this means that plea decisions are made quickly before charges are brought in adult court and without the defendant having a good idea of what the evidence is in the case. Even in jurisdictions where the prosecutor’s policy is to hand over evidence promptly, 21 days does not provide sufficient time. “They have been fair,” said one Broward county public defender about the state attorney’s office in her circuit, “[w]ithin the first 21 days we get a file, a police report, their record. They provide us with whatever they have but they don’t always have everything.”[181]

Once a child is charged in adult court, the incentives to plea are equally powerful. As described above, the preliminary hearings and procedures in adult court and confinement in adult jail may pressure a young defendant to plea. Moreover, the prosecutors who make the charging decisions exercise control over the final sentence which judges have little power to mitigate because many offenses carry mandatory minimum sentences.

In discretionary direct file cases, judges may, with some exceptions, impose juvenile sanctions (meaning the child serves his sentence  under the jurisdiction of the Department of Juvenile Justice) or may sentence the defendant under Florida’s Youthful Offender Statute, which limits sentencing exposure to six years for defendants younger than 21, but still leaves a child with an adult felony  conviction.[182] However, in order for the judge to avail herself of this discretion, the defendant must enter an “open plea” or a “plea to the bench.” In other words, the defendant must enter a plea of guilty to the most serious charge (only prosecutors have the discretion to dismiss charges)[183] without any agreed-upon sentence, and throw himself on the mercy of the court in hopes that the judge will choose to impose juvenile sanctions or give her a Youthful Offender sentence.[184] Defendants faced with lengthy sentences may be reluctant to take their chances with an “open plea,” preferring the certainty that an agreed-upon plea provides.[185]

Not a single young person interviewed for this report went to trial.[186] Many of these individuals seemed not to have had much opportunity to fully comprehend their pleas. Mark V., who was 17 at the time of his arrest and is now serving a four-year prison sentence (to be followed by two years of probation) for his adult felony conviction, recalled his impatience with the criminal process, saying that he opted to take a plea because “I just wanted to get it over with.”[187] Even though he remembered that the judge asked him whether he wanted to try to get juvenile sanctions (which would have allowed him to avoid a felony record), Mark said that he took the adult sentence because he “didn’t want to have to wait and go through all the court stuff.”[188]  Similarly, when Langston T. was given an offer of a 3-year adult prison sentence in addition to probation, he “was thinking I might as well just take it and run with it. I just want a chance to get out; get my GED, go to community college.”[189] Jacob M., who is serving a 10-year prison sentence for a series of robberies he committed at age 16, said he decided to take a plea because he “was just going with the flow.”[190] His sentencing exposure was, he said, “30 years, or life.”

Many of the young people who spoke to Human Rights Watch made the decision to plea in the face of the lengthy adult sentences they would face if convicted at trial. “To me, a month feels like a long time,” said John C. when asked how he felt when he heard the prosecutor’s initial offer of an 8-year prison sentence.[191] Karl A., who was in Orange County Jail awaiting trial when he spoke to Human Rights Watch, was initially told he was facing a 25-year maximum sentence when he was directly charged in adult court.  “That made tears come out my eyes and I got a little woozy,” he recalled.[192] “That’s a long time to be away from my grandmother.” At the time he spoke to Human Rights Watch, Karl’s case was still pending before the trial court and he could not discuss his charges. He later pled guilty and, according to the Florida Department of Corrections website, he received an adult felony conviction and sentence of 5 years’ adult probation for assault, criminal mischief, and related charges.

In a letter, Lawrence F. explained that “[t]here was no use in taking my case to trial because if I lost I could have been sentenced to 25 to 35 years. Believe me at age 16 that is not worth risking.”[193] Jacob M., who pled guilty to an adult felony conviction and is serving a Youthful Offender sentence of 2 years in prison, 2 years of house arrest, and 2 years of probation, had trouble explaining how he felt when he was told about his sentencing exposure if he took his case to trial. “Can you imagine being 17 and someone tells you you’re going away for 10 years?” he asked. “It’s crazy to me how they’re going to lock up a teenager for the rest of their lives for one mistake.”[194]

Matthew N. decided to plead guilty when he learned he faced a 15-year maximum sentence. Despite the fact that he might have had a good defense, “I wasn’t trying to take it to trial,” he said. “I think maybe I could win but 15 years is a long time. That’s a lot of time. You could do a whole lot in 15 years.”[195] He took a plea to an adult felony conviction in exchange for 2 years of house arrest and one year of probation, and is currently attending college.[196]

Adult Sentences and Collateral Consequences

The Convention on the Rights of the Child, an international treaty ratified by every country in the world save the United States and Somalia, states that sentencing of children should take into account “the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.”[197] While Florida judges technically have sentencing options that allow them to take into account the specific characteristics of individual youth, due to the mechanics of the plea negotiation process and the application of mandatory minimums or other mandatory sentencing laws in the adult system, youth-specific sentencing options are often not available.

Sentencing After Direct File

While judges have the option to consider a juvenile sentence for some juveniles convicted in adult court, the default is to impose an adult sentence without consideration of the child’s needs and capacity for rehabilitation.[198] The sentencing statute that applies to juveniles convicted in adult court requires adult sentences for all juveniles prosecuted pursuant to the mandatory provision of the direct file statute.[199] In other cases, the law gives judges the option to impose juvenile sentences (served under the supervision of the Department of Juvenile Justice rather than the Department of Corrections) but, even in the cases for which juvenile sanctions are available, the statute states that an adult sentence is “presumed appropriate.”[200] By contrast, a judge considering imposing a juvenile sentence on a child convicted in adult court must take eight different factors into account before making that decision.[201] If a child defendant wants to place the sentencing decision in the hands of the judge, she must either plead guilty to the top charge the prosecutor brings, or go to trial.[202]

As shown in table 4, below, the percentage of children who receive juvenile sentences varies among jurisdictions. The Florida Department of Juvenile Justice provided Human Rights Watch with previously unavailable data on the sentences given to children prosecuted in adult court between fiscal years 2010 and 2012. During that time period, the percentage of children who received juvenile sanctions in adult court ranged from zero in the 14th Circuit to 25 percent in the 15th Circuit.[203]

Table 4: Percent of Convictions of Adult or Juvenile Sentences by Circuit (FY 2010-2012)

There is also wide variation among circuits with regards to the percentage of children who receive adult jail or prison sentences (rather than adult probation) after being charged in adult court. From fiscal year 2010-2012, the 4th Circuit, which includes Jacksonville, Florida, sentenced 74.3 percent of children prosecuted pursuant to the direct file statute to incarceration in the adult system, while the 11th Circuit, which includes Miami, Florida, sentenced 11.9 percent of such children to incarceration in the adult system.

Table 5: Direct File Ending in Adult Incarceration by District (FY 2010-2012)

This variation cannot be explained by the types of crimes for which children are being directly charged in adult court. As the figure below illustrates, violent offenses accounted for 46-48 percent of direct file cases in the 4th, 9th, 11th and 20th Circuits, yet these circuits sentenced children who were charged directly in adult court to adult incarceration at vastly different rates. If there were a strong correlation between the percentage of arrests for violent offenses and the percentage of transferred youth receiving adult incarceration, we would expect circuits to be plotted along a rough diagonal from the bottom left corner of the plot toward the upper right corner. Rather, we find circuits plotted with no order.

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Human Rights Watch analyzed a variety of variables to determine if other factors could explain the variation in the percentages of children sentenced to adult incarceration. None of the variables we analyzed could do so, including the overall population of the circuit (a proxy for possible urban/rural differences), the racial composition of circuits, how frequently youth are charged in adult court (rate of transfers per 1,000 youth), or racial disparities in transfer rates. Our research also does not reveal any differences in the availability of adult probation services in these jurisdictions which might explain why prosecutors or judges would prefer incarceration. The more punitive responses in certain circuits appear to indicate that prosecutors and judges are simply exercising their discretion differently in obtaining pleas and sentencing juveniles to incarceration in adult facilities.

A child who is convicted in adult court will have a felony conviction on her record unless given a juvenile sentence to be served under the supervision of the Department of Juvenile Justice. Youthful Offender status, which is available to adults between the ages of 18 and 21, as well as to children under 18, can reduce the sentence but still leaves the child with a felony conviction on her record.

Judges often do not have the opportunity to weigh the possibility of a juvenile sentence because plea bargaining effectively cuts the judge out of the sentencing decision.[206] In general, the only way for a defendant to have any certainty about what sentence she will receive in Florida is to negotiate a plea with the prosecutor in which both parties (prosecution and defense) agree on the charge to which the defendant will plead guilty and what sentence she will receive. If a prosecutor will not agree to juvenile sanctions, the defendant’s only chance at obtaining them is to plead to the most serious charge and ask the judge to sentence her, without an agreement from the prosecutor (this is called an “open plea” or a “plea to the bench”). The risk is that the judge may opt against a juvenile sentence and instead decide to sentence the child to a regular adult sentence.

“Juvenile sanctions require a plea to the judge and a roll of the dice,” explained Joshua Beard, a felony public defender in Jacksonville, Florida.[207] He has never had or heard of a case in which a prosecutor, after charging a child in adult court under Florida’s direct file statute, agreed to juvenile sanctions. Human Rights Watch was also unable to find any examples of a prosecutor agreeing to juvenile sanctions once a case had been filed in adult court. Thus, in his experience, the only way a child could receive those sanctions after direct file is if the young person pled to the most serious charge and took her chances with the judge—a risky proposition, given the lengthy sentences at stake. Jackson A., who was 15 years old at the time of his arrest, did take that risk. “I pleaded to the bench so I would have a great chance of going back to play football on probation or something,” he wrote. His roll of the dice did not work out. He received a sentence of two years and four months in prison and has an adult felony record. He wrote, “I’m 17 and leave [prison] in 6 months.”[208]

The Consequences of an Adult Sentence

As noted above, many young people interviewed for this report ended up with adult felony convictions with little understanding of the consequences of those convictions. Jacob M., interviewed at Sumter Correctional Institution, said that “[a]t a certain point, I knew I was in adult court but I still didn’t understand what that meant or why I was there.”[215] Similarly, Calvin W., who pled guilty to stealing a car and is hoping to be able to expunge his record, complained that “[t]hey really didn’t tell me anything about what a felony conviction was. The kids around me and the probation officer from boot camp had to explain to me about expungement and stuff.”[216] This lack of comprehension is particularly troubling given the broad and long-lasting effects of an adult felony conviction.

Probation

Both juvenile and adult probation place many restrictions and requirements on probationers, such as regular meetings with probation officers, random drug tests, curfews, and GPS monitoring. However, the approach and purposes of juvenile probation, overseen by the Department of Juvenile Justice, are very different from those of adult probation, overseen by the Department of Corrections. The statute governing juvenile probation states that, in determining the conditions of probation, the Department of Juvenile Justice must take the child’s needs into account and that any programs imposed “shall be designed to encourage the child toward acceptable and functional social behavior.”[217] The statute governing adult probation contains no such language regarding rehabilitation.[218] Juvenile probation officers, unlike adult probation officers, also have training and experience specifically in working with adolescents.

A sentence of adult probation, while it may seem reasonable at first blush since it limits or eliminates the time that a teenager would spend incarcerated, can set a child up for failure. One defense attorney who practices in the 9th Circuit said, “I hate adult probation, I feel like you might as well send them to prison now,” since the conditions of adult probation are not designed for adolescents and adult probation officers are not necessarily experienced in supervising juveniles.[219] Courtney Drew, a juvenile public defender, noticed a difference between juvenile and adult probation. “We have a lot of really good juvenile probation officers who will go out of their way to help the kids comply,” she said.[220] There did not seem to be the same effort in the adult system. Judge Ralph Stoddard, who presides over juvenile court in Tampa, said that “[adult] probation tends to be a longer path to jail.”[221] Amy Thornhill, a public defender in the 10th Circuit, observed that “very few people make it through [adult] probation here.”[222]

The teenagers sentenced to adult probation can find it daunting both because of the requirements placed upon them and the looming prison sentences they face if they fail. For Calvin W., the scariest part of his probation sentence is that “the judge told me that if I violate I could get 2 life sentences.”[223]

Collateral Consequences

Once a child is sentenced as an adult, she is subject to all of the collateral consequences that result from an adult conviction. In addition to its well-known and much-criticized law barring former felons from voting, Florida restricts the rights of convicted felons in the areas of employment, education, housing, public assistance, driving privileges, adoptive and foster parenting, and student loans.[225] For the individuals interviewed by Human Rights Watch for this report, the barriers to employment loomed the largest. This consequence should be of grave concern to everyone, since studies have found that former offenders who are employed are much less likely to commit another crime.[226]

In Florida, at least 71 occupational groups restrict job opportunities for felons.[227] While Florida does not allow public employers to deny someone work solely because that person was once convicted of a crime, the state does not regulate what private employers do. In 2008, former Governor Jeb Bush commissioned a study of employment restrictions in Florida for convicted criminals. That study found that over 40 percent of jobs in Florida carried restrictions on the hiring of convicted criminals.[228] Florida also permits all employers to ask job candidates whether they have been arrested on criminal charges (charges under adult court jurisdiction), regardless of whether they resulted in convictions.[229]

Thomas G. finished serving a three-year prison sentence in May 2010 and has had trouble getting and keeping a job since his release. He attributes this difficulty to the fact that he is a convicted felon, and his frustration is palpable:

That’s why I say to this day that it is wrong to direct file any kid. What I did when I was 16, that’s still following me and will follow me for the rest of my life. I get a job, and they find out I was convicted of a felony, and they’ve got to let me go. I have no problem with if I did wrong, punish me. But don’t keep it held over me for the rest of my life.[230]

Greg J., who served an eight-month jail sentence after being direct filed for possession of marijuana with intent to sell and battery of a law enforcement officer (for an accident with a police vehicle during a car chase), described the attitudes he had encountered from potential employers: “Do you have a record? That’s the first thing they ask you. You have a conviction. They don’t care about anything else. I applied to a moving company where on the application it said ‘if you’ve ever been convicted as a felon, don’t waste your time.’”[231] Greg is currently “between jobs” and reports to a labor pool on most days.[232] Samuel H., who was interviewed at the Orange County Jail shortly before he was to enter a guilty plea, said that his main concern about his pending conviction was that “it can be hard to find a job. I just think about the job. That’s the main thing that hit me.”[233] Karl A., interviewed while awaiting release from the Orange County Jail after accepting a plea deal that sentenced him to 2 years of house arrest followed by 2 years of probation, was relieved that his plea would not involve any jail time beyond the 63 days he had already served, but was already worried that “I won’t be able to get a good job” due to the felony conviction.[234]

Even young people who did not receive adult convictions after being prosecuted under the direct file statute faced employment consequences, since adult arrests and criminal records are not sealed like juvenile arrest records.

Victoria C.’s grandson, Jarvis, also had his case dismissed after he was prosecuted as an adult under the direct file statute.[235] Victoria spoke to Human Rights Watch one morning while Jarvis was out applying for jobs. She said that the arrest was

still hurting him. This arrest is still the first thing that comes up when you look him up [online]. That’s going to hurt him in the long run. He has been trying to find a job. Constantly he’s looking. He’s out looking right now. I went with him to fill out an application to work selling fireworks and I saw when the guy entered his information into the computer the first thing that came up was this [arrest].[236]

Veronica Limia was prosecuted as an adult under the direct file statute after being arrested for breaking into a neighbor’s house at age 17. She received a juvenile sentence, and was thus able to avoid having a felony conviction on her record. She is now 31 years old and graduated from Florida International University School of Law in 2013. She also feels that her experience in adult court continues to have repercussions for her, particularly in the employment context. Even though she received juvenile sanctions and is thus not technically a convicted felon, she has encountered situations where people have seen the record of her arrest. “I’ve been very outspoken so there are some positive articles about what I’ve done, and I have to bring those articles with me on a job interview,” she said. “I’m a lawyer, and [even] I can’t figure out who does and does not have access to information about that arrest.”[237]

Veronica also spoke about the repercussions her felony arrest had on her ability to obtain housing, something most of the young people who spoke with Human Rights Watch for this report had yet to encounter, since they were either incarcerated or living with their parents. “Do you know how hard it is to get an apartment with a criminal [arrest] record?” she asked. She recounts that when she moved to Miami for law school she “was up front—I had [a] felony arrest. I told them. I thought I had an apartment and as I was driving down, I got the call that I’d been denied. I had to keep the U-Haul for a week and was basically homeless.” She ended up having to take an apartment in a neighborhood she said was not safe, since she got denied at all of the more desirable condominiums. “At some point there should be a way to allow a person to put that behind them if they did bad at 17,” she stated.[238]

Veronica’s experience with trying to rent an apartment is not surprising—criminal records, including adult arrest records, are public, and potential landlords are free to access them. Furthermore, federal law allows for the denial of public housing for people with certain prior offenses.[239] Local public housing authorities have broad discretion under this federal law to deny housing to ex-offenders. In Sarasota, Florida, for example, a person can be deemed ineligible for public housing for four years on the basis of a single drug misdemeanor.[240]

Children Confined in Adult Jails and Prisons

Transfer to Adult Jail

In Florida, once a prosecutor charges a child in adult court, that child is automatically moved to an adult jail.[249] Neither the juvenile judge who presides over the case pre-transfer nor the adult court judge who presides over the transferred case has any authority to keep a child in the custody of the Department of Juvenile Justice, even if those judges believe that the child would be better served there than in a county jail.[250]

In 2006, a Dade County juvenile court judge denied a prosecutor’s motion to transfer a child who had been charged in adult court to the custody of the Department of Corrections. In denying the prosecutor’s motion, the juvenile judge made the following finding on the record:

The Court [feels] that it [is] not necessary to transport the Child to the Dade County Jail. The Child has always shown up to Court in his prior appearances with his parents and his attorney. The Court [feels] that there [is] no useful purpose in having the Child taken into custody and then transported to the Dade County Jail. Therefore, the Court decline[s] to have the child [sic] transported to the Dade County Jail. The only purpose that could be served by transporting this Child under this set of circumstances was to be punitive as there was no other useful purpose to be served by the Child's incarceration.

The appellate court quashed the judge’s denial of the order to transfer the child to jail, holding the judge had no authority to halt the transfer; as a result the child was sent to adult jail.[251]

Conditions in Adult Jails and Prisons

Once incarcerated in adult jails and prisons, children are at risk of violence, sexual assault, and suicide.[252] They are separated from their families, lose access to educational and other services, and are exposed to adult criminals. One Department of Justice report explains the disruptive effect incarceration in adult facilities has on adolescent development:

Particularly vulnerable adolescents are … taking the next steps of their developmental journey in an environment that does not promote physical or emotional health and may harm their progress as well. Although an adolescent and an adult might receive what appears to be an equivalent sentence for a similar crime [e.g. 3 years for a felony assault], adolescents are paying for their crimes at a different point in their life journey; the impact of this experience may be more dramatic as a result.[253]

Adult jails and prisons have a different purpose and are subject to different standards than juvenile detention and residential centers, including in matters such as use of force.[254] For example, while the Florida Department of Juvenile Justice prohibits the use of pepper spray in its facilities, there is no such prohibition in adult facilities.[255] As one federal judge observed, “[m]oving juveniles from the DJJ facility to the central jail facility involved more than just a change in venues. Policy considerations and organizational cultures changed too.”[256]

Although it was not a focus of our investigation, Human Rights Watch has found in our research that youth offenders serving time in adult facilities are often victims and witnesses of violence.[257] The perpetrators can be other inmates, guards, or both.

Kingston S., who was incarcerated in the Youthful Offender camp at Sumter Correctional Institution (an adult prison), described a “test of heart” where other inmates assaulted him, and if he cried during the beating, he had to give them his allotment from the canteen (where inmates are allowed to purchase snacks).[258] Chris D. also spoke of the violence he experienced at the hands of other inmates while at Sumter’s Youthful Offender camp: “I’ve been flipped here. I got my ass beat. I had my eye socket popped. It’s bad. Seen them stick broom sticks up people’s asses.”[259]

In March 2013, the magistrate judge overseeing a lawsuit against the Polk County Jail issued a “Report and Recommendation” that included the following description of one particularly horrific incident in which three boys attacked a fourth:

[T]hree juvenile inmates were on lockdown in Foxtrot dorm, cell 8 (a blind cell dorm) when they beat a fourth cell mate, T.W., to the point of unconsciousness multiple times over the course of several hours. The inmates first wrapped a pillowcase around T.W.’s neck and strangled him until he passed out. Then they hogtied him with a sheet and punched him in the head. When T.W. eventually regained consciousness, his cell mates were whipping him with wet towels. The perpetrators, anticipating that a deputy would make rounds soon, untied the victim while a deputy walked past the cell (Id.). The deputy did not notice anything out of the ordinary and walked on. T.W. was then urinated on, sprayed in the face with a cleaning substance, and stripped of his clothes. The perpetrators wrapped a sheet around his neck, tied the other end around the bar on the window, and pulled the sheet tight until T.W. lost consciousness. This was repeated three times until a deputy finally noticed the commotion and broke up the assault.[260]

The magistrate judge presiding over the Polk County litigation found that “[f]ights occur at the jail with substantial frequency…. My review of the incident reports and protective action reports approximates 25 fights over a ten-month period.” [261]

Many young people spoke about mistreatment and indifference from the corrections officers. Kyle F. alleged that the guards “beat us here. They treat us like dirt. They only have a little section for Y[outhful] O[ffender]s. This is an adult camp. They need a better program for us.”[262] Ava L. observed that,

[In adult jail] the [correction officers] treat you like you’re a piece of crap. Especially when they’re transferring you from one cell to another. I just can’t even explain. It’s horrible. In JDC [juvenile detention] it’s not really like that. In JDC you’re with other girls and it’s just different. The [correction officers] at JDC are not as rough.[263]

Samuel H. said that, in county jail “the COs [corrections officers] put their hands on you, scream at you. These COs can do whatever they want to you. Juvenile COs were calmer. They talk to you, don’t put their hands on you.”[264] Terrence Q. felt that in county jail “officers are different. Some COs don’t care. They just do stuff because they have a badge. In juvie they talk to you, try to guide you.”[265]

Others said that “in jail, for any little thing they put you in [solitary] confinement”[266] and that they “were locked down most of the time.”[267] In 2012, Human Rights Watch issued a report on the solitary confinement of youth. That report found that children held in solitary confinement were often allowed little exercise, time outside their cells other than for showers, or contact with loved ones. The effect on young people was harmful and in some cases devastating, resulting in suicide attempts.[268] 

Florida’s adult jails and prisons, moreover, are not designed to handle the educational, emotional, and social needs of teenagers.[269] One young person complained that “there’s nothing to do [in adult jail]. It was boring. Only select people were allowed to go to school.”[270] Another recalled that in juvenile detention “you were allowed outside a little bit. [In county jail] all I was allowed to do was go out into this concrete slab. I forgot what the grass looked like.”[271]

Veronica Limia, the lawyer who had been directly charged in adult court as a teenager, believes that conditions in adult jail are much worse than in juvenile detention centers. “The detention center is built to be like a school,” she pointed out. “Try finding a classroom in a jail. In juvenile facilities you have groups, you do learn a lot from other girls going through the same thing. Once you’re in the county jail you’re just doing time. That’s what it amounts to. You’re no longer a kid.”[272] Samuel H., interviewed at the Orange County Jail, echoed this sentiment. “In [juvenile] detention you got counseling,” he said. “One-on-one counseling, support groups. Here I haven’t seen a counselor since I came in.”[273] Terrence Q. also recalled that juvenile detention offered counseling that adult jail did not. “They would send us to anger management and stuff [in juvenile]. They try to help you out. It was helpful. I used to be very disrespectful and that changed.”[274]

Children who are placed in adult facilities are also separated from their families in a more extreme way than they would have been had they remained in the juvenile justice system. Because a large number of county jails provide for visitation only via video, many children who are charged in adult court and housed in adult jails are prohibited from having in-person visits with their families. Almost every young person Human Rights Watch spoke to described “video” visits in jail, where their family members would be in a separate physical location and they were only able to see them through a video monitor. Many children found this aspect of incarceration to be particularly upsetting. Calvin W. compared visitation in juvenile detention and adult jail: “In juvie they’re right in front of you. In jail it was by phone. Just seeing them walk away and you can’t even give them a kiss or a hug, that’s bad. Not seeing your family is the worst thing.”[275] Thomas G. stated that in juvenile detention he “was able to touch and hug my family, sit next to them, that kind of stuff. In county it was video so it wasn’t even in the same facility. I felt more alone. I felt like I just hadn’t gotten a hug in so long. It was crazy.”[276] Ava L. said that “in county you have to visit through a phone, you’re watching through a screen. It hurt ‘cause I couldn’t see my mom for so long.” [277] Samuel H. said that visits with his mother in county jail where “you just have these little screens” were “stressful. You at least want to touch your mom and you can’t even do that.”[278]

Family separation is also an issue in prison. While prisons, unlike county jails, allow in-person visits, they are often located far from defendants’ hometowns, making family visits impractical. Furthermore, anybody who wants to visit a prison inmate must submit an application to the prison where that inmate is housed.[279] Those applications can only be obtained from the inmate herself, and each inmate is only given 15 applications. According to the Florida Department of Corrections, potential visitors can be disqualified for “a criminal history, providing false or inaccurate information on a visiting application, mailing an incomplete application, etc.”[280]

Langston T. is serving a 3-year sentence in a prison that is approximately a 3.5 hour drive from his hometown of West Palm Beach, Florida. Nine months into his sentence, he had not had a single visit from his family. “It’s a long trip,” he said.[281] Kingston S. had been at Sumter for over eight months without a visitor.[282] Another young inmate had been in for slightly over six months and his family had yet to get approved for visitation by the prison.[283] Kyle F., serving a prison sentence of 3 years, 6 months, and 14 days, had his visitors’ applications denied.[284] The difficulty that these children face in receiving visits is concerning both because it contravenes international standards that emphasize family unity and because it flies in the face of years of studies that show that regular visits from loved ones can help with rehabilitation and reduce recidivism.[285]

Almost every child sentenced to prison time in Florida is placed in one of several Youthful Offender facilities or “camps,” which house people younger than 24. Even if a child is not sentenced as a Youthful Offender (see text box), the Department of Corrections can, and often does designate the child as a Youthful Offender for the purposes of placement.[286] But Youthful Offender facilities are hardly ideal conditions for children.

Children in Youthful Offender institutions receive more intensive programming, such as adult basic education and vocational programming, than adults do.[287] However, according to the young people we spoke with, even Youthful Offender prison facilities are harsh environments. Some young people interviewed for this report, such as Chris D. and Kingston S., quoted above, experienced and witnessed harrowing physical violence in Youthful Offender facilities.

Furthermore, the mere fact that children in Youthful Offender camps receive more programming than adults do does not mean that such programming is sufficient to meet the needs of adolescents younger than 18. As one Department of Justice study found,

Although [Florida Department of Corrections] administrators attempt to distinguish between very young offenders and young adults in housing assignments, no provisions are made to provide developmentally appropriate programming specific to the needs of 14-to-17-year-olds. Given the unique issues and needs of adolescents, the Florida program may compromise its effectiveness by targeting too broad an age group.[288]

Langston T. summarized his views on incarceration by saying “Adult prison? It ain’t a place to be. It’s just breathing and eating. You just a number in here.”[289]

IV. Relevant Legal Standards

In every other area of Florida Law, children are given an extra measure of scrutiny and protection…. [Y]et when a child is filed against in the adult criminal system, where the trauma and risks are extraordinary, no extra scrutiny or protection is afforded. This is especially troubling in light of the fact that at this stage the child is merely accused and still presumed innocent.[290]

—The Honorable Judge Ralph Stoddard, 13th Judicial Circuit

Don’t brand a child with an adult felony record because it puts a burden [on him] that might not be overcome. Don’t put him in an adult criminal environment. Put [him] in an environment geared to addressing the problems of young people.[291]

—Harry Shorstein, former Florida 4th Circuit elected state attorney

Florida Law

Florida courts have repeatedly held that juveniles have no absolute right to be tried in juvenile court, and that transfer statutes are constitutional, most recently in the case Hernandez v. State.[292] While Hernandez cited extensively to the Supreme Court’s Roper, Miller, and Graham decisions in vacating the sentence at issue, it did not apply any of the reasoning in those cases to its discussion of direct file and reaffirmed the dispositive status of an earlier case, State v. Cain.

State v. Cain interpreted a 1978 statute in Florida, which limited direct file in adult court to 16- and 17-year-olds. Under that statute, if a teen did not have two or more prior convictions, at least one of which was for a felony, she could be transferred back to the juvenile system.[293] In upholding that version of direct file, the Cain court reasoned that “[t]here was no common law right to be specially treated as a juvenile delinquent instead of a criminal offender. Nor is there any inherent or constitutional right to preferred treatment as a juvenile delinquent.”[294]

US Federal Law

While the US Supreme Court has never held the transfer of children to adult court to be unconstitutional,[295] the court has long recognized that teens are not adults, and that their limited life experience, immaturity, and the fact that their brains have not fully developed make them less culpable for their crimes and more amenable to rehabilitation than adults. Over the past decade, the United States Supreme Court has affirmed in four different decisions regarding the death penalty,[296] interrogations,[297] and life without parole[298] that people under age 18 are still developing and are inherently less culpable than adults.

International Law

The Child’s Right to Special Treatment

International human rights law recognizes that people accused of crimes are entitled to due process, and that children need special protection. Being charged and even convicted of a crime, no matter how serious, does not extinguish a child’s claim to just treatment at the hands of government. Children are entitled to all of the due process protections an adult would get and to additional accommodation because of their status as children.

The International Covenant on Civil and Political Rights (ICCPR), which the United States has ratified, specifically acknowledges the need for special treatment of children in the criminal justice system and emphasizes the importance of their rehabilitation.[299]  When children are accused of crimes, the ICCPR requires that “the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation” (emphasis added).[300] In other words, children’s special status is to be protected throughout the criminal process, not just at the sentencing stage. In the words of a prominent jurist, while article 14 of the ICCPR “does not expressly require States parties to establish juvenile courts … they must ensure that criminal trials against juveniles are conducted differently than those against adults, this being normally accomplished by juvenile courts.”[301]

When the United States ratified the ICCPR, it attached a limiting reservation maintaining “the right, in exceptional circumstances, to treat juveniles as adults, notwithstanding paragraphs 2(b) and 3 of article 10 and paragraph 4 of article 14.”[302] The history of this reservation indicates that it was intended to permit—on an exceptional basis—the trial of children as adults and the incarceration of children and adults in the same prison facilities. The United States, as a co-sponsor of article 14, was keenly aware of the breadth and scope of its language. There is nothing in its reservation to suggest that the United States sought to reserve the right to try children as adults for practically any crime at all and at the whim of a prosecutor, or to disregard the special needs and vulnerabilities of children.[303] To the extent the reservation is interpreted broadly, it risks creating a loophole so broad as to allow for violation of the basic human rights of children in conflict with the law. The United States should withdraw the reservation and in the meantime should refrain from using it to justify actions that otherwise violate the ICCPR.

Although the US was one of the 78 members of the UN General Assembly that voted unanimously to adopt the Convention on the Rights of the Child (CRC), it is also one of only two countries (the other being Somalia) that has not ratified it. Despite the fact that the US has not yet ratified the CRC, the Supreme Court has cited it favorably in its decisions interpreting the “cruel and unusual” clause of the Eighth Amendment as applied to juveniles.[304] The CRC states that “in all actions concerning children … the best interests of the child shall be a primary consideration.”[305] Furthermore, article 40 of the CRC states that every child accused of committing a crime shall “be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.”[306] The Committee on the Rights of the Child, in a General Comment, has stated that the principle behind article 40 “requires that all professionals involved in the administration of juvenile justice be knowledgeable about child development, the dynamic and continuing growth of children, what is appropriate to their well-being, and the pervasive forms of violence against children.”[307]

The US is also a member of the Organization of American States, and as such, is legally bound to protect and prevent violations of the rights contained in the American Declaration on the Rights and Duties of Man (“American Declaration”) and the American Convention on Human Rights, including the right of children to special protection, care and aid, as expressed in article VII of the American Declaration and “the right to the measures of protection required by his condition as a minor” as expressed in article 19 of the American Convention.[308]

The United Nations also promulgated a series of rules, which, while not binding, reflect international consensus and are considered authoritative. Most relevant to the issue of prosecutions of children in adult court are: the UN Minimum Standard Rules for the Administration of Juvenile Justice (The Beijing Rules), the UN Rules for the Protection of Juveniles Deprived of their Liberty, and the UN Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines). These rules provide further guidance on international standards for the treatment of children accused and convicted of crimes.

Charging Decisions

International law does not bar prosecutorial discretion from playing a role in the charging process. Indeed, the Beijing Rules specifically contemplate the use of prosecutorial discretion in juvenile proceedings, but they state that “[e]fforts shall be made … to ensure sufficient accountability at all stages and levels in the exercise of any such discretion.”[309] The UN has spoken on the proper use of discretion, stating that, in deciding whether to prosecute a juvenile in criminal court, a prosecutor should take the child’s individual characteristics into account.[310] Similarly, the Inter-American Court of Human Rights has stated that “those who exercise discretion should be specially qualified or trained in the human rights of the child and child psychology to avoid any abuse of the discretionary authority and to ensure that the measures ordered in any case are appropriate and proportionate.”[311]

Florida’s direct file statute violates all of these international standards by making prosecutors’ decisions to charge children directly in adult court unreviewable and final, and by failing to require prosecutors to consider a child’s special status prior to making the direct file determination.

Court Processes

By allowing prosecutors to charge children directly in adult court where they undergo the exact same process as adults, Florida is failing to provide children with due process protections that “take account of their age and the desirability of promoting their rehabilitation,” as required by the ICCPR.[312] Rule 14.2 of the Beijing Rules states that criminal proceedings against juveniles “shall be conducive to the best interests of the juvenile and shall be conducted in an atmosphere of understanding, which shall allow the juvenile to participate therein and to express herself or himself freely.”[313]

The Committee on the Rights of the Child has explained that an accused child must “be able to effectively participate in the trial, and therefore needs to comprehend the charges, and possible consequences and penalties, in order to direct the legal representative, to challenge witnesses, to provide an account of events, and to make appropriate decisions about evidence, testimony, and measure(s) to be imposed.”[314] The Committee has stated that “modified courtroom procedures and practices” may be required in order to ensure that a child receives a fair trial.[315] The CRC states that a child has the right to have his or her case heard “in the presence of … his or her parents or legal guardians” unless there is a determination that such familial involvement is not in the best interests of the child.[316] The Committee on the Rights of the Child has read this requirement to mean that “[p]arents or legal guardians should also be present at the proceedings because they can provide general psychological and emotional assistance to the child.”[317]

The youth interviewed for this report recounted attending criminal court proceedings that they did not understand, and feeling alone without their parents at their side. Many of them were unable to explain any aspect of the process that resulted in their convictions. Unlike in juvenile court, there are no special steps taken to ensure that proceedings are conducted using vocabulary that children can understand. Criminal court proceedings do not encourage familial support. The fact that children are subjected to proceedings that are incomprehensible to them is at odds with notions of fairness and due process, but it also offends notions of rehabilitation. It is difficult to see how children can be expected to learn anything from a procedure that they cannot understand.

Incarceration

While Florida law requires jails and prisons to house juveniles separately from adults, the fact remains that adult jails and prisons are not designed or operated in ways that take the special needs of juveniles into account. By housing young defendants in adult jails and prisons both pre- and post-conviction, Florida violates international law.

Article 10(2) of the ICCPR states that juveniles held pre-trial must be “separated from adults and brought as speedily as possible for adjudication.”[318] Further, the Inter-American Court of Human Rights has stated that

preventive detention is the most severe measure that can be applied regarding someone accused of a crime. Therefore, it should be reserved for the most exceptional cases, given the limits imposed by the right to presumption of innocence and the principles of necessity and proportionality that are essential in a democratic society…. When, however, preventive detention is deemed necessary in the case of a child, it must be for the shortest period possible.[319]

The young people who spoke to Human Rights Watch for this report uniformly spoke of the physical transfer from juvenile detention to adult jail as being traumatic and disruptive. To the extent that Florida continues to subject children to the jurisdiction of the adult criminal system, it should ensure that those children continue to be treated with consideration for their needs by keeping them in the custody of the Department of Juvenile Justice pending disposition.

A child’s right to treatment consistent with her age and the desirability of her rehabilitation is not extinguished by conviction. Article 10(3) of the ICCPR requires the separation of convicted children from adults and the provision of “treatment appropriate to their age and legal status.”[320] As in the pretrial context, housing children in adult prisons post-conviction violates these standards. While Florida has made an attempt to address the needs of youth through its “Youthful Offender” camps, the fact remains that those camps are still prisons that are oriented primarily towards punishment rather than rehabilitation.

Incarceration in adult prison also impinges upon the right to family unity and the right of the child to maintain family ties, due to the far-reaching restrictions on visitation in jails and prisons. Article 17 of the ICCPR states that no one shall be “subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence.”[321] Article 23 provides that “[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the state.”[322] The Convention on the Rights of the Child states “every child deprived of liberty … shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.”[323]

The Committee on the Rights of the Child has elaborated that “[i]n order to facilitate visits, the child should be placed in a facility that is as close as possible to the place of residence of his/her family.”[324] For almost all of the people interviewed for this report, family contacts were constrained by the requirement in many jails that visits occur over video, and by the onerous visitor approvals process and long distances families must travel to visit their loved ones in prison.

Other Rights

Florida disenfranchises convicted felons for life.[325] This practice violates article 25 of the ICCPR, which states that every citizen “shall have the right and opportunity … (b) To vote and to be elected[.]”[326] While Article 25 does not completely disallow disenfranchisement pursuant to a criminal conviction, the UN Human Rights Committee has stated that “[i]f conviction for an offence is a basis for suspending the right to vote, the period of such suspension should be proportionate to the offence and the sentence.”[327] Lifetime disenfranchisement for any felony, no matter how minor, is clearly arbitrary and disproportionate. Disenfranchisement imposed due to actions committed when a person was a mere adolescent is even more egregious.

Of the more than 1 million people barred from voting in Florida due to the state’s felony disenfranchisement law, nearly 1 in 3 are African American men.[328] Florida’s felony disenfranchisement law is thus also inconsistent with the principles of non-discrimination contained in the ICCPR and in the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Article 25 of the ICCPR prohibits racial discrimination with regard to voting rights. Article 5 of ICERD requires states parties to guarantee, without distinction as to race, color, or national or ethnic origin, “[p]olitical rights, in particular the right to participate in elections—to vote and to stand for election—on the basis of universal and equal suffrage…”[329] ICERD does require discriminatory intent for a finding of discrimination. Rather, it defines racial discrimination as any law or practice which has the “the purpose or effect” of restricting rights on the basis of race.[330]

The right to privacy is also implicated by Florida’s direct file law. The Committee on the Rights of the Child has stated that “[n]o information shall be published that may lead to the identification of a child offender because of its effect of stigmatization, and possible impact on his/her ability to have access to education, work, housing or to be safe.”[331] Rule 8 of the Beijing Rules further states that “[t]he juvenile’s right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labeling.”[332] These privacy concerns are well-founded, as Human Rights Watch learned in researching this report. The stigma of a felony conviction is real and long-lasting. Young defendants who had completed their sentences expressed frustration at how difficult it was to put their past mistakes behind them, and dismay that their adolescent actions would brand them for life.

V. Conclusion

The criminal punishment of any person is intended to further the policy goals of retribution, rehabilitation, incapacitation, and deterrence—all of which are meant to work together to protect public safety. When Florida’s lawmakers developed the direct file statute, they undoubtedly had these goals in mind. Unfortunately, direct file in Florida fails to fulfill their intentions.

First, Florida’s direct file statute does a poor job of ensuring retribution for the offenses committed by children, including teens. Teens prosecuted directly in adult court in Florida have committed offenses, some of them serious, causing varying degrees of harm to persons and property. Ensuring justice for the victims of their crimes is an essential responsibility of government, and retribution necessarily plays a part in that process. As the Supreme Court has stated, however, “The heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender.”[333] Children can commit the same acts as adults, but by virtue of their immaturity, they cannot be as blameworthy or as culpable. They do not have adults’ developed abilities to think, to weigh consequences, to make sound decisions, to control their impulses, and to resist group pressures; their brains are anatomically different, still evolving into the brains of adults. These characteristics of children are what inspired the creation of juvenile courts in the first place.

As the Supreme Court stated in Roper, the differences between youth and adults “render suspect any conclusion that a juvenile falls among the worst offenders.”[334] Thus, the urge for vengeance must be tempered by a careful attention to the unique qualities of youth offenders. By giving prosecutors broad discretion to charge Florida’s youth directly in adult court and subject them to a system that pays scant attention to their diminished culpability, Florida’s direct file system fails to achieve its retributive aims.

Second, Florida’s decision to allow prosecutors to directly charge children in adult court fails to effectively serve the rehabilitative purpose of punishment. As this report has shown, rehabilitation can be stymied by the special hardships inherent in receiving an adult felony conviction, and in serving time in prison or on adult probation. Youth are denied the educational, vocational, and other programs to develop their minds and skills that juvenile justice systems were created to provide. After conviction, children are plagued by an adult felony record for the rest of their lives; they are denied the right to vote in Florida and their job opportunities are severely impaired. Direct file not only undermines rehabilitative goals, it negates them.

Third, deterrence of future crime is also ill-served by direct file statutes. Supporters of adult punishment for children claim that children who pause to consider the consequences before committing a crime will be deterred best if they face charges in adult court and adult prison time. But given what all parents know and science tells us about adolescents’ limited abilities to think rationally or beyond the short term, it is questionable whether the threat of adult punishment will deter them from crime.[335] Deterrence is also unlikely given that adolescents have difficulties grasping the true significance of their adult felony convictions and sentences. Not surprisingly, as summarized above, recent studies suggest as much: transfers to adult court are linked to increases, not decreases, in recidivism.

Fourth, while the purposes of incapacitation are undeniably served by adult prison, the juvenile justice system also provides for incapacitation. Indeed, because the juvenile system can combine incapacitation with rehabilitation, it is able to serve the overall goal of protecting public safety as well as or better than the adult justice system in juvenile cases.

Florida’s direct file law and practice fail to effectively serve the purposes of punishment, violate the international human rights obligations of the United States, which are binding on the state of Florida, and are unnecessary to meet public safety goals. Children should be held accountable for their crimes. This is an important and fundamental human rights obligation of government. But ensuring that children are treated in a manner that takes into account their culpability, their particular needs, and their unique capacity to grow and change, is also a cornerstone of international human rights law. Both can be achieved by the state of Florida if it ends its unduly harsh and unnecessary system of directly charging children in adult courts.

Acknowledgments

Alba Morales, researcher in the US Program of Human Rights Watch, researched and wrote this report. Brian Root, quantitative analyst at Human Rights Watch, helped analyze and develop graphic representations of the sentencing data presented in the report. Alison Parker, director of the US Program of Human Rights Watch, and Elizabeth Calvin, Children Rights Division senior advocate, edited the report. General Counsel Dinah Pokempner and Deputy Program Director Joseph Saunders provided legal and program review. Production assistance was provided by Samantha Reiser, Kathy Mills, and Fitzroy Hepkins, administrative manager. Valuable factual and legal research assistance was provided by Erin Lovall and Margaret Weirich, both Human Rights Watch interns.

We are deeply grateful to individuals who, as children, were charged as adults in Florida and shared their experiences for this report. We would also like to thank the families of those individuals, in particular the parents and grandparents who gave us valuable insights on the effect that seeing their loved ones prosecuted in the adult system at a young age had on them as caregivers. We would also like to acknowledge the victims who were harmed by the crimes committed by the young people featured in this report.

We thank Mark Greenwald and his staff in the Research and Planning division of the Florida Department of Juvenile Justice for their enormous patience with our many data requests.

We are grateful to each of the legal practitioners, scholars, and community advocates who spoke to us about their experiences with Florida’s juvenile and criminal justice systems. Florida’s public defenders, particularly those in the 4th, 9th, 10th, 11th, 13th, and 17th Judicial Circuits, gave freely of their time and expertise, and answered countless questions about Florida criminal procedure. The Southern Poverty Law Center provided much-needed insight on the often extreme conditions faced by youth incarcerated in adult facilities. Paolo Annino provided early consultation regarding Florida’s treatment of young people accused of crimes, as did staff at the Campaign for Youth Justice. The staff at Barry University’s Juvenile Justice Center gave us ongoing guidance and advice. We are grateful to the state attorneys and judges who spoke candidly about their experiences prosecuting and presiding over cases involving young defendants. We would also like to thank those jail and prison personnel who allowed us to conduct interviews at their facilities. We are thankful to the probation officers who spoke to us about their experiences supervising court-involved youth.

Susan Marcus, a criminal defense attorney in private practice, and Lily Shapiro, a legal writing instructor at New York University School of Law, provided helpful comments on a draft of this report.

Human Rights Watch is, of course, solely responsible for the conclusions we have drawn from these interviews and other research.

Appendix A: Human Rights Watch Letter and Survey

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Appendix B: Transfer Rates for Murder and Property Crimes for Black and White Youth

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Appendix C: 2011 Direct File Policies of the 4th Judicial Circuit

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