The Marshall Project
“The Worst State for Kids Up Against the Law: It’s Florida, hands down”
March 24, 2015
By Eli Hager
Last week, the Florida Supreme Court ruled in Falcon v. Statethat juveniles not convicted of murder may not be sentenced to life in prison, and that even those convicted of murder may not be sentenced to life without parole, citing a U.S. Supreme Courtprecedent that children are inherently less culpable and more amenable to rehabilitation.
This week, in the wake of that decision, approximately 200 inmates in Florida’s prisons – those who are serving life in prison for crimes they committed as juveniles – may begin applying to have their sentences retroactively reduced.
“It’s a major landmark, what we’re seeing with Falcon,” says Tania Galloni of the Southern Poverty Law Center’s branch in Florida. “This is a huge deal for juveniles in the state of Florida.”
But for Florida juveniles accused of lesser crimes – in other words, crimes that were never punishable by a sentence of life in prison – the outlook in the Sunshine State remains exceedingly dark. In fact, by most available metrics, Florida remains the worst state in the country to be a child in the justice system.
“It has been and, I think, continues to be the worst state for young people accused of crimes,” says Mishi Faruqee, an expert on juvenile justice for the ACLU. “North Carolina and New Yorkare unique for the lowest maximum age of juvenile jurisdiction. But otherwise, Florida is absolutely the unique state.”
Below, a rundown of the most critical ways in which Florida is decidedly not the state where children want to find themselves on the wrong side of the law.
Florida transfers more juveniles to adult court than any other state.
Florida is “the clear outlier” in terms of how many children it transfers to adult court, even among states with similar reporting practices, according to the most recent available data from the federal Office of Juvenile Justice and Delinquency Prevention. The state transfers juveniles at eight times the rate of California, a state with similar transfer laws and reporting.
BETWEEN 2003 AND 20081, Florida transferred an average of 164.7 juveniles per 100,000; the next highest rate was Oregon’s, which transferred an average of 95.6.
BETWEEN 2003 AND 20081The number of transfers in Florida has dropped since 2009, but there is no evidence that the decline has been more pronounced than in other states; it may be the result of a coinciding drop in youth crime.
And most of these youngsters diverted to adult courts are charged with nonviolent crimes. Florida transfers children for drug and property offenses at an abnormally high rate. Over the last five years, over 12,000 juveniles in the state have been transferred to face adult charges, 60 percent for nonviolent crimes and only 2.7 percent for murder.
These extraordinary numbers are mainly the result of the nation’s most expansive law allowing prosecutors the discretion to “direct file” juvenile cases in adult court. Prosecutors in Florida may “direct file” the cases of all 16 and 17-year-olds, as well as those of any 14 and 15-year-olds charged with a range of offenses against persons or property – and even some misdemeanors.
And the choice to transfer these children to adult court is entirely the prosecutor’s. There is no hearing, no burden on the prosecutor to explain his or her reasoning, no opportunity for the defendant’s lawyer to make counter-arguments. Neither the judge in juvenile court nor the judge in adult court may dispute the PROSECUTOR’S UNILATERAL DECISION2.
PROSECUTOR’S UNILATERAL DECISION2Unlike most other states that allow “direct file,” Florida does not allow “reverse waiver,” a process by which juveniles can petition the judge in adult court to remove their case back down to juvenile court.
What’s even scarier for children in this situation is that prosecutors in Florida truly use this power, frequently as a source of leverage to coerce pleas and keep cases from going to trial, according to a 2014 report by Human Rights Watch that analyzed juvenile cases around the state.
Because the threat of adult court and, with it, adult jailing is so real, many juveniles plead guilty before they have the chance to assert their right to see the evidence against them.
Finally, once in adult court, the consequences for children are severe. They face much longer sentences (though not life without parole, as a result of Falcon). Their rehabilitation is not an explicit intention of the proceedings, as it would have been in juvenile court; nor does the judge have any obligation to make the proceedings more comprehensible to a child, as a judge in juvenile court would. And they are saddled with a lifelong criminal record, precluding them from taking out student loans – before ever applying for college – and disabling them from voting – before they ever got to VOTE3.
VOTE3In Florida, ex-felons are prohibited from voting for five to seven years, then must apply to have the privilege restored.
Florida holds more juveniles in adult facilities than any other state.
But extensive transfer to adult court is not the full extent of Florida’s abnormal treatment of juveniles. The state also houses more juveniles in adult facilities than 28 other states combined, according to the most recent reported data from 2009.
The reason? In Florida, by statute, all juveniles charged as adults in adult court are held pretrial in adult facilities.
In these adult facilities, juveniles are often farther from their families; they are not offered age-appropriate educational programming; and they are at greater risk of experiencing – or, also traumatic, witnessing – violence, sexual abuse, or suicide. (To wit, in the past few months, we have learned that prison officials at a Florida prison regularly “gassed” inmates with chemicals as punishment for filing grievances, and that a record 346 deaths occurred in the state’s prisons in 2014.)
For children charged as adults in Florida, serving time in dangerous Florida prisons is adult punishment indeed.
Florida is one of only a few states that has privatized all of its juvenile correctional facilities.
Florida also takes an unusual approach to how it imprisons juveniles who aren’t transferred to adult facilities. Namely, all of the state’s juvenile correctional facilities are privately-operated.Not a single one is publicly-run, subject to full oversight by public officials.
Twenty-eight of these juvenile facilities are operated by G4S, a multinational security and risk-management corporation. Nine of the facilities are operated by Youth Services International (YSI), a company with such a history of sexual abuse scandals that only Florida has signed contracts for youth facilities with them in recent years.
Rays of hope?
But all is not hopeless for juveniles in Florida’s justice system, according to many advocates. Under the leadership of two consecutive secretaries – first Wansley Waters and now Christina Daly – the state’s Department of Juvenile Justice has shifted toward a more rehabilitative approach, says Deb Brodsky of the Project on Accountable Justice, a Florida-based organization that collects data on criminal justice.
“Over the last five years,” she says, “DJJ has tried to divert a lot of these kids out of the system, by reducing the number of beds instead of charging so many of them.”
Five different bills that would eliminate or greatly limit prosecutors’ discretion to “direct file” have made significant headway in the Florida legislature. One bill moved out of a House committee in early March – by a 12 to 1 vote. Another bill, the subject of a hearing this week in the Senate, would put the decision to transfer juveniles to adult court in the hands of a judge, not prosecutors, and would prohibit the holding of juveniles in adult facilities.
These bills enjoy the support of an increasingly broad coalition, says Galloni, one that has emerged as the citizens of Florida learn more and more about their state’s unique treatment of juveniles.
“At one of the hearings,” she says, “everyone from the James Madison Institute [a conservative think tank] to Human Rights Watch to the PTA was in attendance. And that’s because the story has gotten out about Florida’s frankly embarrassing status as the worst of the worst in some of these categories related to juveniles.”
As Brodsky puts it, “Sunlight is a powerful disinfectant.”