Reform is desperately needed in Florida’s juvenile justice system. Florida has a history of being a state that leads the country in prosecution of minors as adults and, as a consequence, incarceration of minors in adult facilities. Children as young as 14 and 15 may be prosecuted for an enumerated list of felonies. Children who are 16 and 17 years old may be prosecuted as adults, and sent to adult prisons, for any felony.
The vast majority of crimes alleged against children are relatively minor crimes, such as truancy, drug possession, petty theft, vandalism, disorderly conduct and others. Such charges are prosecuted in the juvenile justice system and not adult court, and, for the most part, the juvenile court system does a good job of helping to set these children on the right path. There are many reasons why juvenile court is more suited to the unique issues presented in the criminal prosecution of a child, but the two that stand out to me as a former prosecutor and experienced criminal defense attorney are: (1) the primary goal of the juvenile justice system is rehabilitation, whereas in the adult criminal court system, rehabilitation takes a back seat to punishment as the primary goal of sentencing, and (2) the juvenile court system involves the parents or legal guardian of the child, who must appear at all court hearing and who are often involved in the rehabilitative measures that are put in place.
The need for reform arises in the scenario where a child is alleged to have committed more serious criminal acts (felonies), and a decision must be made as to whether to prosecute the child in juvenile court versus adult court. In Florida, the law gives all the discretion to make this decision to the prosecutor overseeing the case for the state. A Florida prosecutor may charge a minor child as an adult simply by filing a document called a “direct file” which transfers the case, and affiliated charges, from juvenile court to adult court. Furthermore, a judge has no discretion to review this decision, reject or challenge this decision, or otherwise determine the appropriateness of the decision to prosecute a child as an adult.
Once a prosecutor has charged a child as an adult, the judge must accept what the prosecutor decided. Florida prosecutors, and prosecutors in most states for that matter, are protected by a concept called prosecutorial immunity. Prosecutorial immunity is the absolute immunity that prosecutors in the have in initiating a prosecution and presenting the state’s case. In the 1976 case of Imbler v. Pachtman, the U.S. Supreme Court ruled that prosecutors cannot face civil lawsuits or other penalties for prosecutorial abuses or for being overzealous in their job by prosecuting a child as an adult. As a result of the policy of prosecutorial immunity, as it applies to the prosecution of minors as adults in Florida, the decision of a prosecutor to direct file a particular juvenile case to adult criminal court and to seek incarceration in an adult facility is beyond reproach regardless of how unreasonable, inappropriate or arbitrary it might be.
As stated above, the primary goal of sentencing in juvenile court is rehabilitation while the primary goal of sentencing in adult criminal court in punishment. Once the decision is made to prosecute a minor child as an adult, that child’s chances of receiving rehabilitation services become less likely. In cases where minor children are serving prison sentences in adult facilities after having been prosecuted in adult criminal court, they are often cut off from valuable services such a much needed counseling and or rehabilitation services for drug addiction that they would have received if they had remained in the juvenile system.
I began my legal career as a prosecutor in St. Lucie County in the 19th Judicial Circuit of Florida, and I can tell you that prosecutors are hired to zealously represent the State in the successful prosecution and punishment of those who violate our criminal laws. There are many good prosecutors who realize that their function is not always to seek the most severe punishment, but to seek an outcome which benefits the community and the individual(s) offended or victimized by the defendant, even if that outcome involves leniency or rehabilitative measures instead of incarceration. However, some prosecutors have a tendency to measure their success by the severity of punishment that they obtain against defendants. Putting aside for the moment a discussion of the appropriateness of that mentality as applied to adult defendants, this mentality should seldom be applied to child defendants. It is widely accepted that the brain of child is not physiologically the same as that of an adult, and yet Florida law continues to give individual prosecutors the discretion prosecute a child as an adult which has resulted in numerous instances where adult penalties, such as lengthy prison sentences, being imposed on minor children. Furthermore, there is little uniformity in the decision-making process of when to prosecute a child in adult criminal court. A child alleged to have committed a criminal act may face prosecution in adult court in one circuit while the case another child, who is similarly charged, may remain in juvenile court simply because of a differing mindset of a particular prosecutor or prosecutor’s office in a different circuit.
This discretion should be taken out the hands of prosecutors and given to judges. A judge, who is an objective and impartial referee between two adversarial parties, is better suited
to make this decision than an individual prosecutor. A prosecutor would still be able to advocate for his or her position of transferring a juvenile case to adult criminal court where adult penalties can be imposed, just as defense counsel would have the opportunity to argue the opposite position. However, society would be better served if we let a judge, not a prosecutor, decide which court is more appropriate for a child after considering factors such as a child’s age and maturity, history of trauma, the likelihood of rehabilitative services benefitting the child and preventing re-offending, the level of participation in the offense and whether the child and community would be better served if the case were handled in the juvenile or adult system.
For more information about our Florida criminal defense and juvenile justice practice groups, contact author and attorney Christian Van Riper at 800-650-1243 or email him directly at [email protected].