Office of Sen.

Mike Johnston
Colorado General Assembly | 200 E. Colfax Avenue | Denver, CO 80203 | 303.866.4864

FACT SHEET MEMORANDUM

HB 12-1271 Juvenile Direct File Limitations Reps. Nikkel, McCann & Sens. Giron, Neville
Staff Name: Kate Hennessy What the Bill Does: One of the fundamental differences separating the adult criminal system from the juvenile system is the overriding goal of the Colorado Children's Code to provide rehabilitation of an adjudicated child in a manner consistent with the best interest of the child and the protection of society rather than fixing criminal responsibility, guilt, and punishment. In general, youths under the age 18 who are accused of crimes are tied in the juvenile system.1 However, under current law, certain juveniles charged with serious crimes can be prosecuted in district court if the district attorney decides to direct file the juvenile. More specifically, under the current law, a district attorney has discretion to direct file juveniles as young as 14 if the juvenile is alleged to have committed murder in the first degree, a crime of violence pursuant to section 18-1.3-406, murder in the second degree, or certain enumerated sexual offenses. In addition, a district attorney has discretion to direct file juveniles as young as 16 if the juvenile is alleged to have committed a first or second class felony, vehicular homicide, vehicular assault, felonious arson, a class 3 felony, sexual assault, or a felony and is determined to be an habitual juvenile offender. Currently, once a youth is direct filed, there is no statue providing judicial review of any kind. The judge has sentencing authority, but, when the youth is charged as an adult, sentencing will be to Youth Offender Services or to an adult prison under a mandatory prison sentence. 2 Under HB 12-1271, juveniles under the age of 15 years could no longer be direct filed at the discretion of the district attorney. Thus, juveniles between the ages of 12-15 years could only be tried as adults after a judicial transfer hearing where a district court judge determines that there is probable cause to try the juvenile as an adult. In addition, HB 12-1271 limits the offense that juveniles over 16 years can be direct filed on to alleged first or second class felonies and certain sexual offenses. Moreover, under this proposed legislation, juveniles over the age of 16 who are direct filed could file a motion for a reverse transfer hearing; the district attorney would then have an opportunity to file a response. Also, if the court determines that there is not probable cause for the direct file eligible offense, the case would be remanded to juvenile court. In addition, under HB 12-1271, if a juvenile was tried as an adult then a judge would not be required to abide by mandatory sentencing minimums. Finally, under HB 12-1271, the current and past mental status of the juvenile is among the factors to be considered when determining whether or not a juvenile should be tried as an adult.

1 2

C.R.S. 191102(1)(a); People v. J.J.H., 17 P.3d 159 (Colo. 2001) C.R.S. 19-2-517. See also, League of Women Voters of Jefferson County: Direct File from the Perspective of District Attorneys, available at http://lwvjeffco.org/files/Direct_File_EMM_Nov_2011.pdf.

DRAFT 3/27/2012 9:22 PM

For a complete list of fact sheets, visit www.mikejohnston.org/in-the-legislature.

Colorado Context: In 1923, Colorado passed a direct file law, which empowered prosecutors to try some children, as adults in the criminal court. In 1993 the district attorneys authority was expanded to cover lesser crimes after public outcry over Denvers so-called Summer of Violence, which saw several high-profile cases of gang violence. Then, two years ago, the statute was amended again to require prosecutors to list factors for charging a juvenile as an adult and implement a14-day waiting period for defense attorneys to present district attorneys with mitigating information.3 The following are some additional statistics on direct file in Colorado: - In 2009, 28 percent of every 100,000 criminal cases against juveniles in Colorado ended up in adult court.4 - Of 1,860 cases direct filed from 1999 to 2010, only 84 have gone to trial. The remaining 1,776 cases resulted in a plea bargain. 5 Of these direct-file cases between 1999 and 2010, 85 percent involved middle- and lower-level felonies and approximately 5 percent involved first-degree murder cases. 6 National Context: Exploring ways to keep individuals under 18 in the juvenile justice system and out of the adult system is a growing trend in states.7 Over 30 states currently allow 16-or-17-year old youth accused of homicide the right to judicial review regarding whether they should be prosecuted in the juvenile or adult system. Colorado is 1 of 4 states that allows prosecutors to hand-pick youth for adult court.8 Moreover, in multiple recent decisions, the United States Supreme Court has found that juvenile offenders should not be treated in the same way as adult offenders, in part because brain science shows that the pre-frontal cortex of the brain, responsible for planning and risk assessment, is not fully developed until the mid-twenties. 9 Bill Provisions: - Juveniles between the ages of 12-15 can only be tried as adults after a judicial transfer hearing where a district court judge determines that there is probable cause to try the juvenile as an adult. - Limits the offense that juveniles over 16 can be direct filed on to alleged first or second class felonies and certain sexual offenses. - Juveniles over the age of 16 who are direct filed may file a motion for a reverse transfer hearing; the district attorney then has an opportunity to file a response. - If a juvenile is tried as an adult, the judge would not be required to abide by mandatory sentencing minimums. - The current and past mental status of the juvenile is among the factors to be considered when determining whether or not a juvenile should be tried as an adult.

CBS News: Colorado Law Makers Review Adult Charges For Youth, available at http://denver.cbslocal.com/2012/03/11/colorado-lawmakers-review-adult-charges-for-youth/ 4 5280 Magazine: Direct Fail, available at http://www.google.com/search?client=safari&rls=en&q=direct+file+Tom+Raynes&ie=UTF-8&oe=UTF-8 5 League of Women Voters of Jefferson County: Direct File from the Perspective of District Attorneys, available at http://lwvjeffco.org/files/Direct_File_EMM_Nov_2011.pdf. 6 CBS News: Colorado Law Makers Review Adult Charges For Youth, available at http://denver.cbslocal.com/2012/03/11/colorado-lawmakers-review-adult-charges-for-youth/ 7 NCLS: 2009 Juvenile Justice State Legislation, available at http://www.ncsl.org/issues-research/justice/2009-juvenile-justicestate-legislation.aspx. 8 CJDC website, available at http://cjdc.org/wp/juvenile-justice-policy/re-directing-justice/. 9 Graham v. Florida, 130 S. Ct. 2011, 2018 (2010); Roper v. Simmons, 543 U.S. 551 (2005).

DRAFT 3/27/2012 9:22 PM

For a complete list of fact sheets, visit www.mikejohnston.org/in-the-legislature.