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April 22, 2010

Interesting discussion of state juve bind-over procedures

This local piece out of Denver, which is headlined "Children behind bars: Why Colorado is trigger-happy when it comes to sentencing kids like Alan Sudduth as adults," provides an interesting discussion of concepts with allowing state prosecutors to unilaterally decide when to try juvenile offenders as adults.  Here is an excerpt:

The state's current direct-file system was a response to growing concerns about crime in the 1990s, says Kim Dvorchak, chair of the Colorado Juvenile Defender Division.  "What had been happening before was that when a child committed a serious crime, the DA would have to petition the juvenile court judge to waive jurisdiction and send the case to adult district court," she says.  "In the 1990s, crime went up and the judicial transfer process was perceived as cumbersome.  You had to have a hearing.  There were defense lawyers involved and they might get evaluations and evidence.  It was like a mini-trial."

So to get tough on crime, the Colorado Legislature passed a series of laws that allowed prosecutors to bypass judicial hearings and direct file kids fourteen and older for class 1 or class 2 felonies and other crimes.  That gave DA's offices widespread new authority, says Dvorchak. "The direct-file statute relieves a prosecutor of having to prove the child is no longer amenable to treatment in the juvenile system," she explains.  "Even when prosecutors are seeking the death penalty, they have to give notice.  It's a separate sentencing hearing, and a jury decides whether or not to impose the death penalty.  Even that level of due process is absent from the direct-file statute."

Colorado isn't unique in having direct-file laws.  Fourteen states allow district attorneys to direct file kids as adults, something often referred to as judicial waiver.  Some states have even passed mandatory waiver laws, meaning that kids over a certain age accused of first-degree murder have to be charged in adult court, no matter what defense attorneys or prosecutors might say.

But Colorado is unique in one regard, says Dvorchak: "We have no ability to return kids to juvenile court.  The majority of other states that have direct-file or mandatory waiver laws give the child an opportunity to challenge adult-court jurisdiction either at pretrial or at sentencing.  As Colorado's direct-file statute currently stands, there is no provision that allows defense attorneys to challenge the prosecutors' decision that a child should be subject to adult laws instead of juvenile laws."

And that's a problem, says Dvorchak, because once such a decision is made, it can have drastic consequences on the kids involved.  For one thing, as part of a direct file, the prosecutors can decide the youth should stay in adult jail pending the conclusion of the trial. Since these jails don't have separate facilities for juveniles and the kids can't be mixed in with the older inmates, that often means the youths are subjected to 23- or 24-hour cell lockdown. There are often few of the recreation and education opportunities available at juvenile facilities, and the young inmates aren't allowed contact visits with their families.  "The conditions are almost like death row," says Dvorchak.  "They have worse conditions than the adults."

Over the past couple of years, there have been two prominent examples of teenagers committing suicide while incarcerated in local adult jails, one in Pueblo and one in Denver. Dvorchak says there are also major problems with sending kids through court proceedings designed for adults. "Reports have found that prosecuting children in adult court increases recidivism," she says. "Children's experiences going through the adult court proceedings are so negative. In juvenile court, it's a much friendlier atmosphere.  Most people in the juvenile court system are interested in rehabilitating these kids, getting them on the right track.  That's not what happens in adult criminal court. It's a much more sterile environment."

April 22, 2010 at 10:41 AM | Permalink


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I find it interesting that the Chair of the Colorado Juvenile Defender Division seemed to indicate that perhaps the extra procedural protections available in the death penalty context (notice, a separate sentencing hearing, and a sentence imposed by the jury), should also be available in the bind-over decision. If the bind-over decision implicates Apprendi, it would seem the jury would have to be involved. I am curious about what Judge Morris Hoffman, a Colorado state judge and big proponent of jury sentencing in noncapital cases, would have to say about having the jury sentence bound-over juves.

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Posted by: Robynrihanna | Apr 23, 2010 2:13:13 AM

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