Limit on Prosecutors' Power to File Adult Charges Against Kids Heads to Senate

After a second lengthy and sometimes emotional debate, the House gave final approval Tuesday to a controversial bill that would force prosecutors to obtain a judge's permission before charging 14- and 15-year old children with crimes in adult court.

HB 1208 would not impose a similar limit with regard to 16- and 17-year old children charged with crimes. However, the bill establishes a "reverse transfer" process by which a judge could order a case filed directly in adult court back to the juvenile justice system.

Opponents of the measure argued, as they had Friday, that the bill creates the possibility that children charged with serious crimes would not serve enough time to be rehabilitated or properly punished. They also forcefully asserted that taking away district attorneys' authority to "direct file" a criminal charge against young teenagers in adult courts would disrespect victims and encourage more juvenile crime.

"I want to remind you that the law is what it is in Colorado today is in response, a reasoned response, to a summer of violence in 1993. The idea of directg filing on juveniles for serious crimes was an effort to end gang violence. It did so," Rep. Bob Gardner, R-Colorado Springs, said. "The juveniles who are particularly violent do receive the rehabilitation treatment they need."

But the bill's backers, including Rep. Liane "Buffie" McFadyen, D-Pueblo West, said opponents were overreacting.

"I believe all of us care about victims," McFadyen said. "But this bill doesn't necessarily change an outcome. It doesn't change sentencing."

McFadyen said the issue addressed by the bill is whether it should be easy for a prosecutor to sentence to life in prison a 14- or 15-year old children.

"That should not be an easy process," McFadyen said.

But Rep. Cory Gardner, R-Yuma, argued that the creation of direct-file authority for district attorneys in 1993 was essential to reducing crime.

"When we are tough on crime, we reduce the numbers of crime," Gardner said. "Prior to direct file, gangs would often have a 14- or 15-year old member perform drive-by shootings or killings as part of initiation knowing that sentences for a juvenile would be minimal. We should not be encouraging any age group or part of our society to be part of a crime."

Rep. Morgan Carroll, D-Aurora, responded that the issue is not whether violence is tolerated. "With or without this bill, as long as things can be proven beyond a reasonable doubt, these folks will be punished," she said. "The question we have to ask ourselves is, 'is there a reason to treat juveniles different from adults?' If not, let's just get away from the pretense of having a juvenile justice system and treat them all as adults."

Carroll argued that the real issue before the House was how to decide whether to try a juvenile as an adult.

"The real process question is, 'How do we decide if a juvenile should be tried as an adult?'", she said. "You can either have one of the parties in an adversarial system have unilateral, unchecked ability, unappealable decision, to put juveniles in an adult system or you can actually put the same question to an impartial factfinder, a judge, and give due process to juveniles on the question as to wehther they should be tried as a juvenile or as an adult. The question is who should be making the decision."

Rep. Anne McGihon, D-Denver, disputed a statement by Rep. Steve King, R-Grand Junction, that taking away direct-file authority is a mistake that will embolden gangs.

"Taking away direct file is not a mistake," McGihon said. "Forty-six other states seem to function very well without direct file against juvenile defendants."

Rep. Douglas Bruce, R-Colorado Springs, disputed in turn McGihon's argument that the the U.S. Constitution requires a hearing before a juvenile can be charged in adult court.

"It's important to understand that nobody has a right to have a hearing before charges are filed against them," Bruce said.

The U.S. Supreme Court held in a 1966 case called Kent v. United States that the due process clause of the 14th amendment does require a hearing, at which a juvenile is represented by counsel, before a criminal case against that juvenile is transferred to adult court.

The bill, which cleared the House on a 34-30 vote, now moves to the Senate.

If approved there, prospects for approval by Gov. Bill Ritter are uncertain.

"I think there's a serious question whether, if this bill makes it to the governor's desk, it will be signed," Rep. Bob Gardner, R-Colorado Springs, said.

According to sponsor Rep. Claire Levy, D-Boulder, Ritter told her during a conversation last year that he was not in favor of a bill that would entirely eliminate district attorneys' ability to direct-file against a juvenile in adult court.

But Levy says she does not believe Ritter has ruled out signing a bill that limits that authority to 16- and 17-year olds.

"I've talked to him since then about this more modest change to the direct-file statute," Levy said. "He's still not comfortable with it. I did not take his comments that he would close the door on signing a bill that deals with direct filing."

Spokespersons for Denver district attorney Mitch Morrissey and 18th judicial district attorney Carole Chambers declined to comment on final House passage of HB 1208.