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CJCJ in the news: Bill seen as first step to juvenile filing reform

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by Linda J. Williams

In October, the state Legislature passed a bill that clarified the criteria under which juveniles can be considered fit for adult court. Though the bill doesn't go into effect until Jan. 1, it has already made its presence felt in juvenile fitness hearings, and proponents hope it will be just the first blow in a larger fight.

SB 382 provides judges conducting fitness hearings with a more detailed road map of how to weigh criteria such as previous delinquency and success of previous attempts at rehabilitation. However, the bill will not change one of the more controversial aspects of California's current system of juvenile justice: direct filing.

In 2000, voters passed Proposition 21, a tough-on-juvenile-crime initiative which, among other provisions, created direct filing, making California one of only 15 states that give district attorneys the power to directly file charges against certain juvenile offenders in adult court.

In the 15 years since, however, three U.S. Supreme Court decisions - Roper v. Simmons, 543 U.S. 551 (2005), Graham v. Florida, 130 S. Ct. 2011 (2010), and Miller v. Alabama, 132 S. Ct. 2455 (2012) - have moved case law further toward the notion, according to Miller, that "because juveniles have diminished culpability and greater prospects for reform ... they are less deserving of the most severe punishments."

While SB 382 doesn't affect direct filing, it represented an important opportunity to begin a conversation with legislators about the practice, said USC law professor Heidi Rummel. She worked with students in a legislative practicum who lobbied for passage of the bill, and direct filing was a primary topic of their discussions with lawmakers.

"At the time Prop. 21 was passed, we didn't have the benefit of a lot of the information that we do now," Rummel said, referring to a widening scientific consensus regarding significant differences between adult and adolescent brains and the case law from the Supreme Court.

"Those factors should absolutely be taken into consideration by a judge - not by the prosecution or the defense - before the decision is made to put them in adult court, she added. "That is a very serious decision in California."

Elizabeth Calvin, an attorney at Human Rights Watch who helped draft the legislation, said the most important decision the state can make is whether or not to keep the child in juvenile court, where they will have greater access to rehabilitative services.

"Any time we have a court making that decision, we want them to have as many tools as possible to consider the best interest of that child."

A prosecutor doesn't "have the information or the tools to be considering that wide range of facts," Calvin argued. "They are not equipped to deal with all of the issues that should be dealt with in that process."

Generally, prosecutors decide to direct file in adult court within 48 hours of detention, making a full consideration of the juvenile's background difficult.

"The person representing the kid has to try to convince the district attorney not to file as an adult, and they've got this clock running in the background," said retired Santa Clara County Superior Court Judge Eugene M. Hyman, who presided in a delinquency court for five years.

The theory behind juvenile justice is that each youth should be considered on a more individualized basis, Hyman said, "but they're making these decisions in many cases without all of the information."

"If you have a system where only judges make that decision, prosecutors still have the role of arguing that person should be tried as an adult," Calvin said. "So it doesn't strip the state of the ability to make the decision, but they are keeping each established role in the criminal justice system in its appropriate place."

Most district attorney offices do not have written policies in terms of when they will use direct filing, Hyman said, and "it is so much power - huge - that the public is entitled to know when they are going to use it."

There also exist large disparities in direct filing numbers statewide, said Nisha Ajmani, manager of the Center for Juvenile Criminal Justice's Sentencing Service Program.

In the CJCJ's 2012 report, the most recent on the issue, San Francisco and Los Angeles counties reported the state's lowest direct filing numbers, with 0.7 and 2.6 direct filings per 1,000 juvenile felony arrests respectively. By contrast, Yolo County reported a rate of 33.9 per 1,000, and in Kings County, 35.8.

Such a disparity leads to arbitrary imprisonment, Ajmani said, all based on the county in which the adolescent is tried.

"We use direct filing very sparingly, and only for the most violent and dangerous juveniles," said Yolo County District Attorney Jeff Reisig, who said that his county's numbers have changed since CJCJ's report. "But voters enacted the direct filing statute that we use, and the juvenile system is often not suited to deal with those violent juveniles who are 16 or 17 years old. If the voters change it back, that's fine."

Kings County District Attorney Keith Fagundes did not return calls for comment.

SB 382 is an important step, Calvin said, as it was the first time in 40 years that California made any change to laws around juvenile court transfers in a way that could potentially reduce the number of juveniles who end up in the adult system.

"It's a reflection of dramatically changing ideas in the public, in science, in the judiciary, about what works with young people committing serious crimes," she said. "I think this is the most important single decision the state makes about an individual youth, and we should be looking at that process from start to finish."

Keywords: direct file, fitness hearing, Nisha Ajmani, Proposition 21, SB 382

Posted in Juvenile Justice, Sentencing

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