Part of the philosophy for creating a separate juvenile-justice system in the United States is the idea that the state can act as a parent, or parens patriae—protector, caretaker, disciplinarian—when a young person fails to respect the rights of others, commits petty or serious crimes, or shirks age-based societal norms by committing so-called status offenses.
But parenting is hard. Even for the state.
Sometimes the lessons learned with one generation benefit the next. Sometimes cultural attitudes change—making kids’ behavior more acceptable (smoking marijuana) or less acceptable (campus assault) as time passes. And sometimes parenting styles collide, leading to an impasse in which the children’s wellbeing and fate hang in the balance.
That is the case today in California, where a little-known legal measure is testing the state’s parenting skills when it comes to its juvenile offenders.
In 2000, voters in California approved Proposition 21, a ballot measure that, among other things, gave district attorneys the right to “direct file” juvenile offenders who committed felonies and other serious crimes like murder and sex offenses. Direct filing gives the D.A. alone the power to decide whether or not a young offender should be tried as an adult in an adult court instead of in the juvenile-justice system. In all, 15 states and Washington, D.C., have such a mechanism in place. In California, the D.A. has to make that decision within 48 hours of an arrest and usually only has the police report to guide his or her decision. In 2014, 393 young people were direct filed and tried in state adult courts. The state attorney general’s 2015 juvenile-justice report states that 88 percent of juveniles tried in adult court were convicted. Call this parenting style the tough-love approach.
Deciding to direct file a young person circumvents the role of a judge, who would otherwise conduct a “fitness hearing” to determine where an offending youth should be tried. It’s like one parent quickly and unilaterally deciding on a child’s punishment without first talking it over with the other parent. In some cases, the second parent might stand firmly behind the first, but in others, being eliminated from the decision can lead to feelings of disrespect, accusations of power-hoarding, and the unearthing of buried tensions in the relationship.
“With direct file, there’s no opportunity for it to go before a judge to make that very important decision on whether or not a child should be prosecuted as an adult,” said Nisha Ajmani, a lawyer and program manager at the Center on Juvenile and Criminal Justice who opposes the practice. She works with lawyers and young clients on direct-file cases or to prepare for fitness hearings.
But the district attorney has an incentive to eschew fitness hearings, since in California they are exhaustive and can take months. The hearings involve evaluating the young person on five criteria: the degree of criminal sophistication exhibited; whether rehabilitation is possible before the end of the juvenile court’s jurisdiction, at age 21; the delinquency history; the success of any previous attempts at rehabilitation by the juvenile court; and the circumstances and gravity of the offense that’s alleged.
California has worked in earnest in recent years to provide judges more guidance on those fitness criteria. Now the state also emphasizes factors such as the offender’s home and family environment growing up, exposure to violence and trauma, mental and emotional development, and circumstances outside of the seriousness of the crime that might be relevant to the decision to prosecute in an adult court. Call this parenting style the holistic approach.
“A judge should really be the party making that decision after a fair, thorough, and neutral process,” Ajmani said, warning that district attorneys subject to elections often want to appear tough on crime to ensure their political viability. “It shouldn’t be the prosecutor who only has 48 hours to make that decision and is inherently biased to begin with.”
“The absolute reality is that we, as prosecutors, have an immense amount of power in California,” said Patrick McGrath, the Yuba County district attorney. “In some respects, I think almost everybody would agree that the extent of power that we have over charging and case disposition probably really exceeds the amount of power that a judge has.” But McGrath doesn’t think that power is misplaced: He employs direct file in his county and supports its basic premise.
A Center on Juvenile and Criminal Justice report, “Justice by Geography,” looked at the use of direct filing in California. Its author, Mike Males, a senior research fellow at CJCJ, argues that direct filing is a criminal-justice tool that’s not actually impacting crime in any meaningful way. “There are a couple of larger questions here. The first is the context,” he said. “There’s been a mammoth decline in juvenile crime in California … Juveniles are only as likely to be arrested today as they were in 1980.” It’s true: Felonies, misdemeanors, and homicides are down more than 80 percent. Males said this dramatic decrease has lead to “a rather mysterious political climate” in which no one talks about the decline.
Juvenile crime in California has gone down year over year, but the number of direct files has gone up in felonies and other serious crimes. Those kids who are still committing crimes are far more likely to be tried as adults—which doesn’t seem like a great way to help them. As Males said, it just “doesn’t seem rehabilitative, because when you put a kid in an adult prison, maybe they don’t have programs that are geared to a younger person.”
Males’s effort notwithstanding, for the most part there’s a dearth of information around direct filing. A Department of Justice report, “Trying Juveniles as Adults,” concluded that national data on the practice is hard to gather:
No data source exists [for cases] in which juveniles are processed in criminal court as a result of statutory exclusions or prosecutors’ discretionary choices. Because they are filed in criminal court like other cases, involve defendants who are “adults” at least for criminal handling purposes, and represent an insignificant proportion of the criminal justice system’s overall caseload, juvenile cases originating in criminal court can be very difficult to isolate statistically.
Still, most experts agree that direct filing isn’t in any way related to crime rates. Marcy Mistrett, CEO at the Campaign for Youth Justice and a direct-file opponent, said, “Direct file is a plea-bargaining tool.” Not in every single case, “but in almost all cases, it leads to a plea,” she said. Mistrett explained that often there are co-defendants who are older and savvier, who know how to cut deals and get off the hook; these are criminals who understand that they will have the opportunity to “roll on your co-Ds” by providing details and information that may incriminate their younger, more gullible partners in crime. “The [younger] kids don’t know that,” Mistrett said. “They’re still operating from: ‘Your word is your bond. You don’t snitch.’ They don’t understand those [legal] nuances.”
But just because direct filing doesn’t seem to benefit anyone—except maybe prosecutors—being granted a fitness hearing is no automatic pass. About 55 percent of young people who had a fitness hearing were sent to adult court anyway.
One of the most striking moments in a parent’s life is when she finds herself acting with her own children like her parents did with her, saying things like, “Because I said so.” That instant recognition can trigger a mix of reactions from denial to horror. After 16 years of direct file, California seems to have reached its moment of reckoning with its parenting legacy.
Direct file was born in an era when prosecutors’ powers expanded due to the popularity of tough-on-crime approaches to dealing with offenders. “Once you give people power, it’s really hard to take it back,” said Mistrett. That dynamic is currently playing out in California with the contentious Proposition 57, which would strip prosecutors of the decision-making power that direct filing gives them and would return it to the judges. “We want judges to judge and prosecutors to prosecute,” said Mistrett. “We believe that giving prosecutors that unfettered discretion drives up the number of kids into the adult system unnecessarily. Plenty of those children could be handled by the juvenile-justice system.”
What’s more, said Mistrett, “the racial disparities are terrible.” Males backs up that assertion. Males and his team started asking questions about what might be driving the rise in direct files. “We were interested in seeing if there are political implications in direct files,” he said. “That is, if it’s being used by certain district attorneys for reasons other than promoting juvenile justice.” Males cited two reasons why district attorneys might direct file: appearing to be tough on crime and appearing to be hard at work on high-profile cases.
In their study, Males’s team found that, of all 58 district attorneys in the state, the 27 Republican D.A.s used direct filing in 6.4 percent of all felony arrests (the vast majority of arrests are of course adults). And the 19 Democratic district attorneys used direct filing in 2.6 percent of all their similar cases. Males noted another trend: Republican D.A.s are more likely to use the direct-file option against young people of color. That’s not too surprising given the overrepresentation of youth of color in the criminal-justice system nationally, but “finding a political discrepancy here is disturbing,” said Males, “because it indicates that it’s not just legally relevant issues that go into direct-file decisions.”
I wondered what other qualities might affect a prosecutor. So I asked Males to run an analysis of the incidence of direct files based on the race of the district attorney instead of the youth offender. Here’s what he found:
Another problem with direct file in California is its uneven application across the state. “San Francisco doesn’t direct file kids anymore, but in L.A., it’s like a crazy train,” Mistrett said. “Northern California is a little more liberal in terms of how they interpret laws and treat kids.”
McGrath believes that differences in direct-file application are not necessarily indicative of detrimental disparities. “I can tell you that what’s looked at is going to differ from [D.A.] office to [D.A.] office,” he said. “In general, what you’re looking at is the background of the juvenile in terms of prior criminal history, contacts they’ve had with law enforcement, family dynamics, family background. Then, you’re going to be looking at the facts of the crime.” In addition to specifics of the crime, like the number of victims, McGrath said state prosecutors consider “the impact that the crime has had on the community.” He suggested that in his county, Yuba—a largely rural region with a population of 72,000—the impact of, say, a gang-related crime might be more serious than a similar one in L.A. County, where gang activity is more prevalent.
“We made a conscious decision, working with our probation department and our frontline law-enforcement officers, as to how to approach an escalating situation we had with juvenile gang activity,” McGrath said. He said Yuba experienced a “fairly significant increase” in juvenile crimes related to gangs starting about three years ago—and that most of those direct-file gang cases were not individual cases. “It would not be unusual for us to have a case [with] four, five, or six of these juveniles acting together in concert,” he said. “When the filing occurred, we might be taking all of those kids to adult court, or just a number of them.”
McGrath also emphasized that his office worked with the probation department, the sheriff’s department, and other law-enforcement agencies to arrive at a joint decision in each case. “It wasn’t made in a vacuum,” said McGrath, who has been the D.A. in Yuba for 32 years. The county didn’t just automatically direct file on all juvenile cases. “There were juvenile gang cases where we looked and we said, ‘No, this kid is more appropriate to stay in the juvenile system,’” McGrath said. Still, there was a spike in direct-file cases that “skewed the statistics a little bit,” he said.
Statistics like those from the CJCJ study, in which Yuba took the number-one spot in all of California for the most frequent use of direct file, with 55 percent of youth felony arrests leading to a direct file. “Simply from a statistical standpoint, [someone] would look at what happened on a per-capita basis and would say, ‘Oh my God, things are off the hook in Yuba County,’” McGrath said. “The reality was the dynamics of the situation we were working with then pretty much was going to skew those statistics. Now, that has leveled off.” In his view, the increase in direct files in Yuba was entirely due to that “fairly small number—but very, very active number—of juvenile gang members who were committing crimes.”
In fact, McGrath thinks Yuba deserves special distinction for trying to swiftly address a spike in a specific type of juvenile crime. He believes there’s a misperception about direct files based on an assumption that juveniles in an adult facility no longer receive the services their age-mates do in a youth facility. “We still have the same amount of services or the same level or supervision over these kids that we do in juvenile court,” he said.
McGrath, who is also the immediate past president of the California District Attorneys Association, which officially opposes Prop. 57, explained that almost all of the young offenders who are direct filed in Yuba are placed on something called a “grant of probation.” It’s a type of adult probation that has the same level of supervision—or, in some cases, more supervision—as the juvenile court does. “The emphasis has been on accountability, where they understand that they’re no longer in the juvenile system,” McGrath said. “A lot of these kids have already been in the juvenile system. They’ve already been warned; they’ve already been dealt with. Quite frankly, a lot of times, they don’t have the respect anymore for the juvenile system.”
But what about those kids who weren’t given a grant of probation? In California, once in the adult system, no distinction is made for young offenders in terms of case reviews. So anything that might provide evidence for a reduced sentence—like good behavior, community service, or completed educational programs—is only as notable as it would be for any other prisoner of any other age. But a recent change in California’s parole-hearings law allows prisoners who were under 23 when they committed a crime—and who received a lengthy or lifetime sentence for it—to receive a parole hearing after serving 25 years. It is only then that the parole committee can consider if and how the inmate’s youth played a role in the crime.
In McGrath’s view, that’s exactly the kind of seriousness the state needs to take with repeat offenders who have already been through the lower tiers of the system to no avail: Sentencing a young person as an adult increases the stakes and emphasizes the gravity of their actions. “They’re in the adult system,” McGrath said. “They’re going to be held in custody for a period of time based on the severity of the offense. More importantly, we’re looking at long-term rehabilitation with them.”
To opponents of direct filing, long-term rehabilitation is entirely at odds with sentencing kids as adults. They offer a long list of collateral consequences that follow young people who are tried and convicted as adults. The arrest can’t be suppressed or sealed. The conviction can’t be suppressed or sealed. A felony arrest can make offenders ineligible for federal dollars to go to college. A felony arrest can make it impossible for offenders to sign rental leases. In some instances, a felony arrest can completely bar offenders from public housing.
Critics contend that those consequences have lasting effects on the young people tried as adults. “From the moment a juvenile gets arrested, they are supposed to have an adult in the room for interrogations,” Mistrett said. “Once you’re charged as an adult, forget about it. That’s gone.” Right now in California, from the time of arrest to the point of negotiating a plea deal, the young offender being direct filed will only have a public defender by his side. Parents do not have to be consulted.
If tried in juvenile court, on the other hand, the arrestee’s identity is protected while in court. Parents can be part of the decision-making process. The judge has been trained in child development. Probation officers have also had that training. According to Mistrett, “It’s much more of a service and therapeutic model, trying to get to the root causes.”
California also ups the ante on adult proceedings with legal instruments called enhancements. Ironically named, enhancements automatically extend sentences based on a range of factors, like gang affiliation or weapons possession. The idea is that enhanced sentences can deter active participation in street gangs. So an offender who is accused of assault might get one sentence, while an offender who is accused of assault on behalf of a gang could get a much longer sentence. “Decades could be added on top of the baseline crime … even though the underlying offense didn’t mandate that much time,” Ajmani said.
McGrath conceded as much. “Anytime you’re looking at direct filing … there’s going to be a correlation between direct filing and gang cases,” he said. Which means that because youths tried as adults are more likely to be in gangs, they are also more likely to get longer enhanced sentences. “You always have to start with the question, ‘What’s the end goal?’” McGrath said, referring to young offenders. “If you don’t do that, and you’re just basically throwing a resource [at the situation] or making a decision, it often can be ill informed.”
Frankie Guzman, an attorney with the National Center for Youth Law, is critical of enhancements for just that reason: Too often no one is asking, “What’s the end goal?” As a result, more and more kids of color are facing more and more time in prison. “We’re talking about black and Latino people who are convicted of otherwise low-level crimes that wouldn’t get them in prison, but because of the gang enhancement, now they’re in prison,” he said. (Guzman himself is a former youth offender, though he was not subject to direct file, as it was implemented years after his conviction for armed robbery.)
In many states, even when young offenders are not direct filed, they still may be held in an adult jail while their cases are pending, which often means no access to educational programs or adequate recreation. In extreme cases, they may even be put in isolation. But if they are direct filed and tried in the adult justice system, things only get worse: In addition to enhancements, there are mandatory minimums, which are prescribed by law and limit a judge’s use of discretion in terms of sentence length, no matter the age of the defendant. “Most of the kids go up on robbery or assault charges, and so they’ll be looking at between eight and 15 years,” Mistrett said.
Guzman was in the room last December when California Governor Jerry Brown asked proponents of ending direct file to add two extra provisions to their bill, neither of which were related to juveniles: one to restore the prison system’s ability to award credits to prisoners who behave well, and one to allow parole for people convicted of nonviolent offenses. “We had already submitted Prop. 57 language, and we agreed to amend it,” Guzman said. “We cut back some things out of compromise, and included the prison provisions.” Brown’s efforts weren’t limited to direct filing; at the time, his vision was more expansive: He was focused on reducing the state’s prison population altogether. And that complicated everything, blurring the lines between the judicial and the political.
Originally, the direct-file initiative was drafted and presented as a stand-alone proposal. But proponents found themselves having to compromise with Brown to secure his support. “[The bill] was more or less kind of hijacked by the governor,” McGrath said. “It was gutted, additional things were added.” He is confident that most district attorneys in the state, himself included, would readily return to the system in place prior to the adoption of direct file in 2000. “If we want to take direct-filing authority away from me, I have no problem with that,” he said.
So, would McGrath support Prop. 57 if it was a stand-alone bill and thus only about direct filing? “That’s a good question,” he said. “I can’t answer that because it was never presented to the association or to the board, really, to take a position on it. My belief is each county is individual. Each county has it’s own specific set of issues.”
When Prop. 57 hits the ballot box in November, voters in California—which spends $10 billion yearly on corrections issues, about 10 percent of its budget—will get to decide whether to keep direct file or discontinue it. But another 14 states (Michigan, Florida, Louisiana, Georgia, Pennsylvania, Montana, Nebraska, Oklahoma, Vermont, Wyoming, Virginia, Arizona, Arkansas, and Colorado) and the District of Columbia have direct filing on their books and may find themselves in similar conundrums as the opposition gains steam.
Several states are reconsidering direct file, and a handful have reassessed their direct-file policies. Vermont passed a bill this year that in essence ended the practice. Colorado also underwent significant criminal-justice reforms several years ago. As did Indiana, which passed a law that provides for a procedural legislation action called a “reverse waiver,” or “reverse remand.” It allows a criminal-court judge in an adult court to review the facts of a case, and if she believes that it has been misfiled, she can send it down to juvenile court.
Some states take a similar step during grand-jury hearings. Other states wait until sentencing to consider age: “There’s a lot of kids that go up for armed robbery and then they plea down to a simple robbery charge,” Mistrett said—something that wouldn’t be possible if the offender was immediately shunted into the system as an adult. Florida has been widely criticized, including by Human Rights Watch, for its frequent use of direct file. The Sunshine State uses direct file in 98 percent of its cases involving minors, which added up to more than 10,000 cases of young people being tried as adults in the last five years. Like California, the state is reviewing how its policies might be revised.
There is one measure of effectiveness that stands out among any other data. Regardless of the political toggles, the partisan refutations, and the shortsightedness ascribed to direct-file supporters by detractors and vice versa, the ultimate measure of a criminal-justice policy is its impact on public safety. “No one has ever been able to find direct, defensible evidence that the behavior of the system regarding juvenile versus adult jurisdiction plays a direct role in overall crime trends,” said Jeffrey Butts, director of the John Jay College of Criminal Justice’s Research and Evaluation Center. “Crime trends behave the way they behave, and they have a lot more to do with general conditions in the community and everything else. If you’re working in the system, you start developing the belief that you are in control of these trends. Whenever people look at it seriously, it’s never true.”
The Office of Justice Programs at the Department of Justice has a comprehensive analysis of direct-file practices across the country that states:
Juveniles with the highest recidivism rates were those who were incarcerated after being tried in the criminal court. The study indicated that, overall, youth adjudicated in juvenile court had a 29-percent lower risk of rearrest than those tried in criminal court.
Empirically, Butts stated, many people try to find evidence that criminal-court transfer in general reduces crime. “Those tests have always failed,” he said. At best, they’ve been inconclusive. “There’s no evidence that prosecutors are any better at it than state legislators or judges,” Butts added. He explained that legislators direct file via a process called “automatic transfer,” which predetermines whether or not a minor can be tried as an adult based on what offenses he or she committed.
“There is absolutely zero national data on direct file, though the Bureau of Justice Statistics is working on a report to try and capture this,” Mistrett said. “It won’t be released until the end of 2017.” Most of the people I spoke to appeared frustrated at the lack of data for this particular policy. “We don’t know because you’ve got to go, literally, file by file by file,” Mistrett said.
Butts noted another problem, too. “Direct file de-legitimatizes the juvenile-justice system,” he said. “It makes it sound like, unless a kid is put into criminal court, that the response is less than serious. It’s a bad message to send: that sometimes courts can’t be trusted with these decisions, so we should allow the prosecutors to file directly,” he said. Whoever decides how to adjudicate kids, it’s never a great idea to undermine confidence in the role of courts. Much like parenting.
For a prosecutor like McGrath, the benefits of direct file are only as good as the prosecutor implementing it. “You and I both know that if an elected prosecutor starts making decisions not based on good public policy but based on what will be the reaction of the voters in terms of Will they keep me in office?—that is failing the system,” he said. As for prosecutors who want to align themselves with good public policy, McGrath’s prescription is simple: “You do the right thing. If you don’t do the right thing, you should be thrown out.” That, at least, is something every parent can get behind.