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Jax Daily Record Monday, Dec. 7, 201512:00 PM EST

Judicial involvement cut from direct-file bill being considered in Legislature

by: David Chapman

Teenagers and their parents in a juvenile courtroom. A prosecutor announces the teenager will be prosecuted as an adult, which leads to an arrest on the spot.

Both the judge and the defense attorney are powerless at that point.

It’s a scenario that often makes Rob Mason’s phone ring with the loudest complaints.

Mason, the 4th Judicial Circuit’s Juvenile Division director for the Office of Public Defender, calls it an “awful” scene.

The process is called discretionary direct file, which gives prosecutors the power to decide whether teenagers should be tried as juveniles or adults for crimes they have committed, including non-violent offenses.

Critics call the system broken and say judges should have a say in the decision. In the past five years, 12,000 juveniles in Florida were transferred to adult court, with more than 60 percent being non-violent felonies, according to a 2014 Human Rights Watch report.

Direct-file cases account for 98 percent of those transfers and “gives prosecutors unfettered discretion” on the move, the report said.

However, changes could be on the way in Tallahassee. A bill proposed originally sought to make wholesale changes to the direct-file process.

The changes included judicial involvement in discretionary direct-file cases; created a two-tier system of direct-file offenses for teenagers ages 14-15 and 16-17; eliminated mandatory direct file, used for teenagers 16 and older on certain offenses; and considered a teenager’s competency.

Mason is the chair of the Florida Public Defender Juvenile Justice Committee and was in Tallahassee on Tuesday to support the reform bill (HB 129) before a judicial subcommittee.

The group passed a substitute that added a number of offenses to still be allowed for direct file and nixed the part about judicial involvement, though, which Mason said is the crux of the issue.

“The whole thing should be about getting in front of a judge,” he said.

Judges could have been involved via the reverse waiver system, which allowed teenagers who had been direct-filed to adult court to petition for their case to be transferred back to juvenile court.

Mason said Florida is one of three states using direct file that doesn’t provide for the waiver.

Jacksonville appellate attorney Bryan Gowdy said without the judicial involvement, direct file isn’t really being reformed.

“I think to make real change, you need to give the judges some power to decide,” he said. “Right now, the judges are powerless.”

Gowdy has extensive experience with teenagers in the criminal justice system.

In the U.S. Supreme Court, he represented Terrance Graham who was sentenced to life without parole for armed burglary when he was 17.

It resulted in the court declaring unconstitutional all life-without-parole sentences on juveniles for non-homicides.

Gowdy said without that judicial mechanism in direct file, he’d rather see no bill at all pass rather than one with “window dressing” that leaves people thinking real reform took place.

The 4th Circuit that comprises Clay, Duval and Nassau counties ranks in the middle of the pack when it comes to transfers of juveniles to adult courts. From 2012-14, it ranked ninth out of the 20 state circuits, according to Florida Department of Juvenile Justice data.

Brooke Brady, juvenile director for the State Attorney’s Office, said the numbers combat misinformation that critics have said about the office’s use of direct file.

Brady said the Florida Prosecuting Attorneys Association that represents the 20 circuits is working with legislators on the direct-file bill.

There’s been concern among the group about taking away the discretion direct file provides prosecutors.

For example, Brady said, the average stay for maximum risk commitments to juvenile programs is 21 months — an inappropriate short length for serious crimes.

Juveniles can be entered into four “residential” commitments ranging from minimum-risk to maximum-risk.

The more restrictive punishments are high-risk and maximum-risk commitments. High-risk is for nine-12 months in a closely supervised structured setting with 24-hour security and care.

Maximum-risk is for 18-36 months and requires 24-hour supervision.

Mason said the 4th Circuit is a leader in these categories.

Citing Florida juvenile justice data, Mason said Duval County has a commitment rate twice the state rate. Additionally, high-risk commitments are three times the state rate and more than four times the state rate for maximum commitments.

“It’s significant because it’s not just about the numbers that end up in adult court,” said Mason. “It’s about the children who plea bargain because they’re afraid.”

The threat of a juvenile being direct filed is “essentially like an elephant in the room” and puts pressure on teenagers, Mason told the subcommittee.

Additional transparency and a reformed process, he said, would prevent teenagers from plea bargaining to something as a way to ensure they don’t wind up in adult court.

“It’s not good for the system,” he said.

The substituted version unanimously passed the House Criminal Justice Subcommittee by an 11-0 vote.

Several lawmakers said they had concerns about the bill wanted to vote it out to ensure continued discussions and work could be done for reform.

It’s next slated to be heard by the Justice Appropriations Subcommittee.

Mason said he hopes future amendments can push the bill back to how it originally was proposed. He will be back in Tallahassee to speak on the issue if needed.

“We truly need reform,” he said.

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