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Judicial review of direct file in Colorado good for juvenile justice

By Mike Krause

On March 7, House Bill 1271 passed out of the Colorado House Judiciary Committee by a 9-2 vote.  The bill would allow, with certain exceptions, judicial review of district attorneys’ decisions to charge juveniles as adults in criminal cases.  Currently, DAs have unlimited discretion to “direct file” against juveniles without review by a judge.  The bill now heads to the appropriations committee.

The following is a letter sent in February to Colorado lawmakers on the need for judicial oversight of direct file by myself and Marc Levin from our sister think tank, the Texas Public Policy Foundation (TPPF). The letter is on behalf of the Independence Institute, TPPF and Right on Crime:

Dear Colorado Policymakers,

We are writing to share our perspective on modifications to Colorado’s direct file
policy, which would ensure judicial review of juvenile cases transferred to criminal court.

As you know, the Independence Institute is a free market think tank that has been
providing research and analysis to Colorado’s policymakers for almost thirty years. The
Independence Institute seeks to empower individuals and enhance personal and economic
freedom. The Institute’s Justice Policy Initiative researches the impact of criminal justice
policies and practices on prison spending, law enforcement priorities and the lives and
liberties of Coloradans.

In that same vein, Right on Crime works to advance conservative, principled solutions that are proven to reduce crime, lower costs and restore victims. Right on Crime is a national initiative led by the Center for Effective Justice at the Texas Public Policy Foundation, one of the nation’s leading state-based conservative think tanks. The Texas Public Policy Foundation’s mission is to promote and defend liberty, personal responsibility, and free -enterprise by educating policymakers with academically sound research and outreach.

Through TPPF’s Center for Effective Justice, which researches policies that cost effectively
protect public safety, restore victims, and reform offenders, we have been at the
forefront of criminal justice initiatives in Texas that have gained national attention by
reducing both the incarceration rate and, most importantly, the crime rate. These principles
are anchored by our Statement of Principles, signed by some of the nation’s most respected
conservative leaders.

The Independence Institute, TPPF, and Right on Crime do not endorse specific
legislation, but we would like to briefly provide our perspective on reformation of
Colorado’s direct file policy.

Under current law, prosecutors have the legal authority to unilaterally transfer a
juvenile delinquency case to criminal court without judicial review. Such a decision cannot
be appealed by the juvenile.

The unique circumstances surrounding juvenile delinquency require care on the part of criminal justice system. Research has found juvenile offenders are especially capable of reform and rehabilitation, and the juvenile justice system is uniquely positioned to both hold youths accountable and change their ways.

Further, even serious juvenile offenders often benefit from the programming and
services available only in juvenile detention facilities. Facilities tailored to juveniles are
typically more effective and safe for these offenders, and the decision to transfer a juvenile to criminal court forecloses these opportunities.

For these reasons, we believe that judges should have a role from the outset in
determining the proper venue for the adjudication of a juvenile. Certainly, taking advantage
of judicial expertise in making such difficult decisions does not preclude prosecutors from
obtaining a judicial determination that some youths’ criminal actions warrant transfer.
However, judges as neutral arbiters are best situated to objectively consider the facts and
circumstances of each case.

This is the procedure in Texas, where the process of trying a juvenile’s crimes in
criminal court, called certification, must be judicially directed. The judge is required to find
both probable cause the offense was committed, but also that the welfare of the community
demands criminal proceedings, based on the seriousness of the offense or the background of the youth.

Based on a totality of the factors, we believe that judicial review must be an integral
part of transferring a juvenile to criminal court, given both the rehabilitative aspects of
juvenile offending and the specialized programing offered in the juvenile justice system. We
would encourage you to consider these factors in your deliberations regarding Colorado’s
direct file policy.

In conclusion, we wish to thank you for your public service and your consideration of
our perspective on this topic.