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.
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.