|James Dean in a Juvenile Arrest|
* Children with prior felonies should only be direct filed if the child is charged with homicide or the child is at least 16 years of age at the time of the offense, and has been charged with a felony crime involving violence against a person in which the offense was heinous and premeditated, and a written explanation as to why the child was direct filed has been filed with the court.
* Children with prior felonies should only be direct filed if the child is at least 16 years of age at the time of the offense and has been charged with a felony crime of violence against a person.
* Children should not be direct filed on misdemeanor offenses.
* Children who have been direct filed should be entitled to a pre-adjudication reverse waiver hearing, i.e., a judicial review hearing as to whether the child should be prosecuted in adult court or transferred back to juvenile court (as most states have).
This change of law would have directly helped a sixteen year old boy I represented in Clearwater, Florida. He was charged as an adult facing a minimum mandatory prison sentence for using a shotgun to break into a car by shattering the side window not by firing but by striking it with the butt of the rifle. Because he'd been charged as an adult the Judge had limited ability to give a fair sentence even under the Youthful Offender Statute.
The boy's fate hung in the hands of a Pinellas jury. At trial the jury accepted the argument that by using the shotgun as a tool rather than a shotgun the boy should not be found guilty. All of this unnecessary risk could have been avoided if only the Judge rather than the prosecutors could determine if a child should be treated as an adult.
How Florida treats young people charged with crime has been especially troubling. In Tampa Bay, Florida many parents were outraged to find that their children had been falsely listed in secret law enforcement gang membership lists which allowed local Largo police to groom these children as future criminals. Yet occasionally the crime itself becomes the punishment as happened recently when three young Floridians stoled and snorted cremation urn ashes believing it was cocaine.
Ideally both the defense and the state attorney's office would be allowed to present facts to the judge in a preliminary hearing at which the Judge would make an informed decision distanced from public opinion and politics. Clearly even if the Court makes an initial decision to direct file a juvenile as an adult providing the mechanism of a reverse waiver hearing allows the Judge to send the case back into the juvenile court should it be appropriate before actual sentencing so that the sentence is much more likely to be fair.