My introduction to Colorado’s misbegotten juvenile justice system came a few months ago in the Glenwood Springs office of then-District Attorney Colleen Truden. Truden was announcing plans to charge 14-year-old Eric Stoneman as an adult for shooting to death a 9-year-old.
When is the transfer hearing? I asked.
There won’t be one, Truden answered.
I thought judges decide which juvenile criminals get tried as adults, I said.
Not in Colorado, Truden replied.
Look, I don’t believe in coddling juvenile criminals. My rule is: You never worry about the time if you never do the crime. In 20 years tracking increasingly violent children, I have called for lowering the age when juvenile offenders can be tried as adults. Still, no one who truly believes in the American judicial system and who reads The Denver Post’s series “Teen Crime/Adult Time” can think we’re doing it right in this state.
Giving prosecutors virtually unchecked power to decide whether certain accused felons over the age of 13 will be tried in adult court runs scared from our most cherished principle: balance.
Lawmakers first approved a process known as “direct file” in 1973 and expanded it over the next two decades. In doing so, legislators threw a thousand-pound anvil on one side of the scales of justice. That made us weak, not tough on crime. University of Denver law professor G. Kristian Miccio once prosecuted criminals in New York. She represented and protected the public. But even Miccio sees that what’s happened here skews the roles.
“It is perfectly appropriate for prosecutors to try to bring a child into adult court,” Miccio said. “The prosecutor’s role is to answer the questions: ‘Is there probable cause (that a crime has been committed)?’ And ‘Do I have a case?’ The judge’s role is (to ask): ‘Where should the child be placed in the system?’ The judge gets the full topography of what the child is about.”
In 35 states, judges decide if juvenile defendants are tried as adults. In Colorado, the legislature felt that in the most violent crimes, judges could no longer be trusted to do that for defendants over 13.
If some judges do social work from the bench, then legislators, prosecutors and defense lawyers should work to get them removed. Just don’t give up on everyone and everything. That’s what the General Assembly did over the years as it increased the types of crimes that qualified for direct file. Certain children seemed out of control. Lawmakers were determined to let prosecutors take charge, if the courts wouldn’t.
“This (direct file) law passed out of a sense of desperation,” Miccio said. It was like saying our only hope was to “slam children in jail for life without parole.” It was “a statement of total impotence.”
Letting prosecutors unilaterally decide whether to try teenagers over 13 as adults “takes a huge amount of power” from juvenile judges, said University of Colorado law professor Ann England.
When the direct-file law passed, said England, a former public defender, district attorneys promised not to abuse it. Yet she can’t recall a DA asking for an optional transfer hearing for a defendant over 13, something the law allows. And she can’t recall a prosecutor exercising the right – also in the law – to sentence a teenager as a juvenile after trying him or her in adult court. Prosecutors aren’t corrupt. They are political. They do what they’re elected to do. But sometimes, they also do what gets them re-elected.
In June, Denver DA Mitch Morrissey’s office has scheduled an adult trial for a 16-year-old who stabbed to death a fellow student during lunch in a high school cafeteria. The question is not if Morrissey made the right call. The question is why Coloradans are afraid to hold themselves to a fairer standard that allows an objective arbiter to choose. We don’t need to cower. We need to renew faith in each other and accept the challenges of a well-tested institution. It’s time legislators dumped the direct-file law and, once again, let judges play their proper role in juvenile justice. Societies that lack this courage protect no one, especially their kids.
Jim Spencer’s column appears Monday, Wednesday and Friday. He can be reached at 303-820-1771 or jspencer@denverpost.com.
