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Criminal Justice Magazine
Spring 2000
Vol. 15, Issue 1

The Florida Experiment: Transferring Power from Judges to Prosecutors

By Vincent Schiraldi and Jason Ziedenberg

Anthony Laster is the kind of kid who has never been a danger to anyone. A 15-year-old, eighth grader with an IQ of 58, Anthony is described by relatives as having the mind of a five-year-old. Late last year, a few days after his mother died, Anthony asked another boy in his class at a Florida middle school to give him lunch money, claiming he was hungry. When the boy refused, Anthony reached into his pocket and took $2. That's when Anthony ran smack into Palm Beach County prosecutor Barry Kirscher compassionless conservatism. Rather than handling the case in the principal's office, where it belonged, Mr. Kirscher decided to prosecute Anthony as an adult for what was his first arrest. Anthony spent the next seven weeks-including his first Christmas since his mother died-in custody, much of it in an adult jail. (THE CHRISTIAN SCIENCE MONITOR, March 21, 1999.)

Anthony Laster was one of 4,660 youth who Florida prosecutors sent to adult court last year under the wide-ranging powers they enjoy with the state's direct file provisions. Florida is one of 15 states that allow prosecutors-not a judge-to decide whether children arrested for crimes ranging from shoplifting to robbery should be dealt with in the juvenile justice or criminal justice system. Although 43 states have changed their laws since 1993 to make it easier for judges to send children into the adult criminal system, Florida is leading the nation in using prosecutors to make the decision to try children as adults. In 1995 alone, the Urban Institute in Washington, D.C., reported that Florida prosecutors sent 7,000 cases to adult court, nearly matching the number of cases judges sent to the criminal justice system nationwide that year.

The story of Florida's experiment in sending thousands of kids to adult court needs to be scrutinized because it is being touted as a model crime control policy. A juvenile crime bill currently being considered by the U.S. Congress (House-Senate Conference Committee) would give U.S. attorneys even greater powers than those enjoyed by prosecutors in Florida. The change in federal law would remove judges from the process of deciding which justice system would serve young people, and transfer that power to the sole discretion of prosecutors. In recent testimony before a House committee, the Justice Department argued that its prosecutors be given expanded powers to try youth as adults in federal court.

In March, Californians voted to give prosecutors similarly wide-ranging discretion to try juveniles 14 and older as adults. Given the current legislative drive on the state and federal level, it is worthwhile to examine the Florida experience to see what the future will hold for the nation.

Offense category

Who are prosecutors sending to adult court in Florida? The state's juvenile accountability board reports that when prosecutorial waiver was introduced in 1981, the percentage of delinquency cases transferred to adult court in Florida soared from 1.2 percent to nearly 9 percent by 1987. In fiscal year 1997-98, 6,425 of the 94,693 cases disposed of by judicial processing in Florida resulted in transfer to adult court. Although these waiver provisions were originally designed to ensure that violent juvenile offenders were being detained, a 1991 study of two representative Florida counties showed that only 29 percent of the youths prosecutors waived to adult court were accused of violent crimes. Conducted by researchers Donna M. Bishop and Charles Frazier, the study noted that more than half (55 percent) were charged with property offenses that involved no violence; fully 5 percent were tried as adults for misdemeanors. Almost a quarter of the cases waived were first-time, low-level offenders.

Disproportionate minority confinement

The most striking feature of Florida's transferred youth population profile is the extent to which minority youth are overrepresented in the ranks of juveniles being referred to adult court. One study conducted by the Florida Department of Juvenile Justice found that black juveniles were 2.3 times more likely than white youths to be transferred in Florida. Even though nonwhites account for 24 percent of the 10- to 17-year-old age bracket in the state, they currently represent 74 percent of those in that age bracket held in the Florida prison system. "I think the way the system sets up programs shows some institutional bias," one candid Florida prosecutor commented to researchers.

Policy impact in Florida

Although some have suggested that huge numbers of children are being held in adult facilities across the state, it is not clear that youths going to adult court via prosecutorial waiver are serving especially long sentences. The 1991 study by Bishop and Frazier found that, of the juveniles who were incarcerated after disposition, half received short sentences, some shorter than they would have received in the juvenile justice system. The majority (54 percent) of those sentenced to prison were released within three years. A more recent survey by the same authors showed that a majority of young people prosecutors sent to adult court for property, drug, and weapons offenses received jail sentences or probation terms well within the range of what could have been prescribed to them in the juvenile court. The same study showed that in 1995, 61 percent of the youth found guilty in adult court were incarcerated, but only 31 percent were prison terms.

More go to jail

Although it might be expected that prosecutorial waiver would reduce the number of youths being funneled into Florida's juvenile justice system, the opposite has been true. Between 1993 and 1998, the number of annual commitments to Florida's juvenile justice system increased by 85 percent despite its liberal use of waiver to adult court. According to the Office of Juvenile Justice and Delinquency Prevention, Florida has the sixth highest incarceration rate for youth per 100,000 in the nation, and detains young people at a rate 25 percent greater than the national average. This happened during a time when the number of waiver cases was increasing, and the number of felony referrals to the juvenile justice system was decreasing. It's happening, despite the fact that youths waived to adult court are held before trial in adult jails, further reducing the numbers that would need to be held in juvenile detention. Rather than the happy prospect of devoting more resources in the juvenile justice system to fewer youths, the system has widened its "net of control" by committing youth for lower level offenses.

Recidivism: A taste for crime

A number of studies have shown that youth sent to adult court generally recidivate at a higher rate than they do if they are sent to the juvenile justice system. A series of studies by Bishop and Frazier in Florida have analyzed what happens to youth referred to adult court-90 percent of whom are referred there directly by a prosecutor. A study they published in the journal Crime and Delinquency showed that youth transferred to adult court in Florida were three times more likely to reoffend than those sent to the juvenile justice system. While some in the comparison juvenile detention group also reoffended, those transferred to adult court were rearrested much sooner than those sent to juvenile detention, thus reducing their chance to get grounded in the community for rehabilitation. Of those who committed new crimes, the youths who had previously been tried as adults committed serious crimes at double the rate of those sent to juvenile court.

A 1997 study by the same authors showed similar rearrest rates for transferred and non-transferred "property offenders," but youths sent to prison and jail were still rearrested more quickly then their counterparts in the juvenile justice system, and for far more serious offenses than property crimes. The very fact that there are "similarly paired youth"-youth convicted of property offenses and other comparable crime categories-in both jail and deep-end juvenile detention demonstrates the arbitrariness of prosecutorial transfer in Florida.

Youths in deep-end juvenile programs

In a 1998 report prepared for the Office of Juvenile Justice and Delinquency Prevention, Bishop and Frazier conducted in-depth interviews with 50 youths sent to prison by Florida prosecutors, versus 50 who were sent to a state "maximum risk" juvenile detention facility. The study narrative showed that the youths themselves recognized the rehabilitative strengths of the juvenile justice system in contrast to the adult prison system. (See Juvenile Transfers to Criminal Court Study: Phase I (1998).)

Sixty percent of the sample sent to juvenile detention said they expect they would not reoffend, 30 percent said they were uncertain whether they would reoffend, while 3 percent said they would likely reoffend. Of those expected not to reoffend, 90 percent said good juvenile justice programming and services were the reason for their rehabilitation. Only one individual in juvenile detention said he was learning new ways to commit crimes. Most reported at least one favorable contact with a staff person who helped them. As such, the juvenile justice system responses were overwhelmingly positive.

This place is all about rehabilitation and counseling. . . . This place here, we have people to listen to when you have something on your mind . . . and need to talk. They understand you and help you.

They helped me know how to act. I never knew any of this stuff. That really helped me, 'cause I ain't had too good a life.

By contrast, 40 percent of the transferred youth said they were learning new ways to commit crimes in prison. Most reported that the guards and staff in prisons were indifferent, hostile, and showed little care for them. Only a third of the juveniles in prison said they expected not to reoffend. Not surprisingly, those sent to prison by prosecutors responded in an overwhelmingly despondent and negative way.

When I was in juvenile programs, they were telling me that I am somebody and that I can change my ways, and get back on the right tracks. In here, they tell me I am nobody and I never will be anybody.

In the juvenile systems, the staff and I were real close. They wanted to help me. They were hopeful for me. Here, they think I am nothing but a convict now.

Crime Control Impact: Crime Rate

Despite having prosecutorial waiver on the books since 1981, Florida has the second highest overall violent crime rate of any state in the country, and that status has remained virtually unchanged throughout the 1990s. According to the latest available data from the Justice Department, Florida's violent juvenile crime rate is somewhere between 48-57 percent higher than the national average. In 1998, Florida had the second highest violent juvenile crime arrest rate-a distinction it has carried throughout the 1990s.

Though Florida leads the nation in using prosecutorial waiver, the other 14 states that allow state's attorneys discretion to send juveniles to criminal court do not fare much better. Of the states that currently employ prosecutorial waiver provisions, four (Florida, Arizona, Massachusetts, Louisiana) and the District of Columbia) are among the 10 with the highest violent crime arrest rate (age 10-17). While the rest of the nation enjoyed a decline in juvenile crime between 1992 and 1996, five of the states that employ prosecutorial waiver-Arkansas, Nebraska, Arizona, Virginia, and New Hampshire-actually experienced an increase in their violent juvenile crime rates.

Risks to juveniles in adult jails

The children whom prosecutors are sending to adult court in Florida face greater threats to their life, limb, and future well-being when they enter Florida's adult jail and prison systems. These well-documented risks affect both the youths who are convicted in adult court, and those (like Anthony Laster) who are merely being held in pretrial detention for crimes for which they may later be exonerated.

A study conducted by New York researcher Jeffrey Fagan shows that youths are five times more likely to report being a victim of rape when they are held in an adult facility versus juvenile detention. The same study showed that juveniles in adult jails are also twice as likely to report being beaten by staff and 50 percent more likely to be attacked with a weapon. A Justice Department study done in 1981 showed that the suicide rate of juveniles in adult jails is 7.7 times higher than that of youth in juvenile detention centers.

The will of the people?

A 1998 survey published in the journal Crime and Delinquency found that a majority of Americans oppose changing federal law to allow for prosecutorial waiver of youth to adult court. When asked, "Would you agree strongly, agree somewhat, disagree somewhat, or disagree strongly that federal prosecutors should have total discretion to try juveniles as adults for all felonies?" 56 percent of a nationally representative sample of Americans disagreed or disagreed strongly with the idea (41 percent agreed, and 3 percent said they had no opinion). Nearly twice as many respondents were strongly opposed to the idea compared to those who strongly supported it (29 percent versus 16 percent).

Conclusion

As the United States Congress and states around the country weigh various approaches to curbing juvenile crime, the "Florida Experiment" of giving prosecutors broad discretion to decide whether juveniles should be tried as adults has come under serious consideration. On almost every measure examined in this report-statewide crime control, individual recidivism, racial equity and the juveniles' own perception of future offense behavior-the Florida system of prosecutorial discretion waiver was found wanting. n

Vincent Schiraldi and Jason Ziedenberg are director and senior policy analyst, respectively, for the Justice Policy Institute, a Washington, D.C.-based think tank that promotes alternatives to incarceration. The full version of this article, and other reports relating to the risks juveniles face in adult institutions, can be found on the institute's website at www.cjcj.org.

 

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