Bills are moving in the House and Senate that would limit the ability of Florida prosecutors to charge juvenile offenders as adults, a legal practice known as "direct file."
Each measure has passed one committee, and they could be on a collision course, turning on the question of how much discretion prosecutors should have in such cases.
Opponents of direct file point to a 2014 report by Human Rights Watch that found Florida transfers more juveniles to adult courts than any other state. The report also found that between 2009 and 2014, more than 60 percent of the roughly 12,000 juveniles who were transferred to Florida's adult courts had been charged with non-violent crimes.
A coalition of opponents is pushing a measure—SB 314 by Senate Judiciary Chairman Miguel Diaz de la Portilla (R-Miami)—that would require judges to sign off on juvenile-to-adult court transfers. The bills are filed for the 2016 legislative session, which starts Jan. 12.
"Due process is the hallmark of our justice system, and I think that there has to be checks and balances," said Wansley Walters, a former secretary of the state Department of Juvenile Justice and a backer of the Senate bill. "And I absolutely believe that our society has to have that with children."
But supporters of direct file say it works and that it is necessary for public safety. They point to the state's crime rate, which is at a 44-year low. Juvenile arrests statewide dropped 4 percent for fiscal year 2014-2015, for a total decline of 32 percent over the past five years.
"We don't direct file on anybody but dangerous people," said Tallahassee-based State Attorney Willie Meggs, whose office prosecutes cases in six counties. "It gives us the ability to have jurisdiction over that person for a much, much longer period of time. … If we direct file on them and get them into the adult system, then they're treated as adults, and you can have them on probation for the rest of their life if it is necessary."
About 9 percent of the state's juvenile offenders are described as "serious, violent, chronic offenders," according to the Department of Juvenile Justice.
The Florida Prosecuting Attorneys Association supports the House version of the bill—HB 129, filed by Rep. Katie Edwards (D-Plantation), Rep. Kathleen Peters (R-Treasure Island), and Rep. Bobby Powell (D-Riviera Beach)—which puts some limits on prosecutors but doesn't include review by judges.
Edwards proposed a similar bill for the 2015 session that would have restrained the use of direct file, but it faced opposition from prosecutors and died. The House bill filed for the 2016 session initially called for allowing judicial review. But the House Criminal Justice Subcommittee changed the bill this month, removing the judicial review—despite the sponsors' objections—and then passed it unanimously.
As it stands, the House bill would eliminate the current practice of what is known as "mandatory" direct file, which requires prosecutors to send juveniles to adult court under certain circumstances. For instance, a prosecutor faced with a 16- or 17-year-old who has been found guilty of committing a violent crime in the past and is charged with another violent offense must transfer the youth to adult court. Under the House bill, that would be discretionary.
The House bill also would modify current discretionary use of direct file, creating a two-tiered system, based on age and severity of offense, in which prosecutors could choose to transfer juveniles to adult court.
"Direct filing should be a serious matter, of a serious nature," said House Judiciary Chairman Charles McBurney (R-Jacksonville). "You should not be able to direct file on a misdemeanor."
As a prosecutor in the 1980s, McBurney said, he used direct file to transfer juveniles to adult courts in Northeast Florida, but only for habitual violent offenders.
The House bill is a work in progress, McBurney said. He would not speculate on which chamber's version would prevail.
But Sen. Rob Bradley (R-Fleming Island) said the Senate bill—which contains both the tiered system and the right to judicial review—is more "balanced" than the House version.
"Under the Senate bill, you can still be treated as an adult under our criminal justice system," Bradley said. "That doesn't change. All the Senate bill does is ensure that there is an extra layer of review, and that review is in the hands of a judge. … We have judges to look at both sides, both the defense and the prosecution, and then make a reasoned judgment after hearing all the evidence."
Both sides agree that the use of direct file has declined.
"Now we direct-file sparingly," said Buddy Jacobs, general counsel for the Florida Prosecuting Attorneys Association, who also said the practice had been used "very judiciously" by the prosecutors. From fiscal year 2008-09 to fiscal year 2013-2014, Jacobs said the number of direct files decreased by 53 percent.
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