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Mar 11, 2012 11:45 AM by Matt Stafford

Colo. lawmakers review adult charges for youth

DENVER (AP) - Colorado lawmakers worried that too many youth are being charged as adults are trying to scale back the authority prosecutors have.

Prosecutors have always had been able to charge juveniles as adults for the most serious crimes under a process known as "direct file," which is not reviewable by a judge.

But their authority expanded to cover more criminal offenses after public outcry during Denver's so-called "Summer of Violence" in 1993.

House lawmakers gave initial approval this week to a bill to limit direct file to the most serious offenses. Prosecutors oppose the bill and say there's no evidence district attorneys are abusing their authority.

Supporters of the legislation say the current law has cast a wide net and that judges should be able to review prosecutors' decision to charge children as adults.

Worried that too many Colorado youth are being charged as adults, lawmakers are revisiting a 1993 law that expanded prosecutors' discretion to file such charges.

Prosecutors have always had the authority to charge juveniles as adults for the most serious crimes. But that authority expanded to cover lesser crimes after public outcry over Denver's so-called "Summer of Violence" in 1993, which saw several high-profile cases of gang violence.

The Legislature convened a special session, and prosecutors' authority to charge children as adults expanded to include more types of crimes under the "direct file" process, which cannot be reviewed by a judge.

Republican Rep. B.J. Nikkel of Loveland has introduced a bill to change direct file by limiting prosecutors' ability to charge juveniles ages 14 to 17 as adults. Critics of the current system say too many youth face adult charges - and sentences - for lesser felonies like robberies and burglaries, putting them in adult jails and prisons with longer sentences, and leaving them with lifelong felony records.

"That's really contrary to what the law was created for in the first place," said Nikkel. "I think it's an abuse of power, frankly."

The Colorado District Attorney's Council opposes the bill.

"The prosecutors are trained to make charging decisions," said Tom Raynes, the council's executive director.

Nikkel's bill, which passed a House committee Thursday, would require that a judge review a prosecutor's decision to direct file. It also would limit prosecutors' ability to direct file to the most serious felonies, like first-degree murder.

Another bill this year would require that youths charged as adults and awaiting trial be placed in a juvenile facility unless a judge determined otherwise. That bill passed the Legislature and is awaiting the signature of Gov. John Hickenlooper.

The Colorado Juvenile Defender Coalition, which backs Nikkel's bill, said its research shows the state court system has overreached with juvenile offenders.

The coalition reviewed 1,800 direct-file cases between 1999 and 2010.

It found that 85 percent of those cases involved middle- and lower-level felonies. About 5 percent involved first-degree murder cases. Some 22 percent of all cases were ultimately dismissed, the coalition said in a report released this week.

Most of the time, juveniles are not convicted on original charges but plead guilty to lesser crimes chosen by prosecutors, said Kim Dvorchak, the coalition's executive director.

"It really consolidates all the power in the government," she said. "(Prosecutors) are choosing the crime to charge, they are choosing the court to file it in, and then they're choosing the sentence the child is going to get."

Raynes insisted that statistics don't tell the whole story. In cases where prosecutors use direct file to charge juveniles as adults for mid-level felonies, offenders may have a long criminal history, he said.

Raynes said the number of direct filings for juveniles has actually gone down in recent years. Prosecutors used direct file 61 times in such cases last year, compared to 152 times in 2009.

He credited the drop to changes to direct-file procedures two years ago. They require prosecutors to list factors for charging a juvenile as an adult and allow 14-day waiting period for defense attorneys to present district attorneys with mitigating information.

Dvorchak said the decline in direct-file cases only proves that some prosecutors didn't use appropriate discretion before the legislative changes two years ago.

Opponents of direct file worry those juveniles who are charged for as adults for lower-level felonies end up with a criminal record that can't be sealed, with potential lifelong consequences that affect their ability to get a job or housing. Dvorchak said youth who end up in adult facilities are also more likely to reoffend.

Democratic Rep. Beth McCann, a former Denver prosecutor and co-sponsor of the direct file bill, emphasized that district attorneys will still be able to charge juveniles as adults for the most serious crimes.

"Those cases the judges are going to say should be in adult court because the judges don't want to give leniency to someone who's been involved in a really heinous crime," she said.

The issue of how to deal with juvenile crime is emotionally charged, especially in high-profile, violent cases.

On Valentine's Day 1997, Scott Hawrysiak, 15, and Andrew Westbay, 13, were killed in a random shotgun shooting in Colorado Springs while walking home after playing video games at a friend's house.

Gary Flakes, 16, and Jeron Grant, 17, were both charged with first-degree murder, even though prosecutors said Grant was the shooter. Grant ultimately was convicted of accessory to second-degree murder and accessory to manslaughter and was sentenced to 12 years in prison.

Flakes was convicted of criminally negligent homicide and accessory to murder and sentenced to 15 years in prison.

Now 31, Flakes said the judge should have sentenced him as a juvenile because he was not convicted of the original charge. Under that scenario, he said he would have served a shorter sentence in a youth prison, where he would have access to more education programs.

"He just basically threw me away. That's how I view it," said Flakes, who served 12 years in prison. He said his criminal record, which could've been erased if tried as a juvenile, makes it difficult to get minimum-wage jobs. But he also said he knows serious crimes warrant serious punishment.

The victims' families wanted lengthier sentences in the case, and they criticized jurors for not convicting Grant of first-degree murder.

Flakes said he hopes they will forgive him some day.

"That's what I hope for, but they have a right to have that anger that they feel," he said.

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