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III. Background

The United States was once internationally-renowned for its progressive stance towards children accused of crimes. In fact, in 1899 the government of Illinois was the first in the world to decide that children accused of crimes should be treated differently from adults. Colorado soon followed Illinois’ example.

Also in 1899, Colorado Judge Benjamin Lindsey was presiding over the trial of a boy who had stolen coal from a railroad yard because his family was very poor and his father was too sick to work. Judge Lindsey decided that the boy “was not a criminal, not a bad boy, merely a boy.”³ Forever changed by this experience, Judge Lindsey began working to reform the way children accused of crimes were treated. Because of his efforts, Colorado’s first juvenile court, the Denver Juvenile Court, opened in 1900, and Judge Lindsey presided over it until 1927. Other juvenile courts opened in the intervening years. In 1964, Colorado’s juvenile courts became juvenile divisions of adult district courts, but they retained their separate jurisdiction and mandate to rehabilitate, not merely punish, children convicted of crimes. The philosophy of the state Children's Code governing the treatment of juvenile offenders was rehabilitation, not punishment, “an objective best accomplished within a system tailored especially for the young.”⁴

Trying Children as Adults

In 1973, Colorado passed legislation authorizing juvenile courts to transfer to adult court children aged fourteen to seventeen who had been accused of a class one or two felony (such as first or second degree murder).⁵  The transfer would occur if, “after investigation and a hearing, the juvenile court finds it would be contrary to the best interests of the child or of the public” for it to retain its juvenile jurisdiction.⁶ The revised law also allowed prosecutors to file cases directly in adult court against child offenders fourteen and older accused of a class one felony.⁷

A subsequent amendment to the law in 1987 greatly expanded prosecutors’ ability to completely circumvent the juvenile system. They are able to file charges directly in adult court against children fourteen years or older who are alleged to have committed (or attempted, conspired to commit, solicited, or were complicit in the commission of) a class one or two felony, any violent felony, or any one of several other enumerated crimes⁸; who are alleged to have used, possessed, or threatened the use of a deadly weapon; or who fit within one of a series of other statutory categories.⁹ The state also lowered the minimum age for transfer to adult court. Children as young as twelve may be transferred to adult court if they are alleged to have committed a class one or two felony or a crime of violence.

Upon conviction in adult court, child offenders face the same array of prison sentences as a person decades older. Some of those sentences are mandatory. That is, the judge has no discretion to impose a different sentence. A judge must sentence to life without parole a child offender—even one as young as twelve years old—convicted of a class one felony, such as first degree murder.¹⁰ The sentence is mandatory even if this is the child’s first offense and regardless of the child’s developmental maturity, or whether there were other powerful mitigating circumstances.

Before the expansion of prosecutors’ ability to file charges against children directly in adult courts, children accused of serious crimes received meaningful transfer hearings in which the reasons for and against retaining the case in juvenile court were fully developed. As defense attorney Tamara Brady told Human Rights Watch, “transfer hearings used to work. It was a truly adversarial process.”¹¹

Today, few children in Colorado who have committed serious crimes appear in juvenile courts. Gus Sandstrom, a prosecutor in Colorado, acknowledged to Human Rights Watch that prosecutors prefer to charge children accused of serious crimes directly in adult courts rather than beginning in juvenile court and having a transfer hearing. Douglas Wilson, a public defense attorney told Human Rights Watch that since 1992, his public defenders office in Pueblo, Colorado has not represented a single child offender at a transfer hearing. He explained that he has talked with public defenders throughout the state and has found no one who has represented a child at a transfer hearing over the past ten years. According to Wilson, “it’s almost as if it is considered prosecutorial misconduct to [begin in juvenile court and] do a transfer hearing in these cases. Instead, [prosecutors] just file [charges against children] directly in adult court.”¹² While Wilson acknowledged it was possible that there were cases in which a private attorney handled a transfer hearing in juvenile court, he pointed out that “the prosecution’s burden is much heavier going through a transfer hearing, so why would they do it?”¹³

When charges are filed against children directly in adult courts, there is no hearing to determine whether the child should be in juvenile court. Indeed, judges in adult courts have no authority to withdraw their jurisdiction and send a child charged with a serious crime as an adult back to juvenile court.¹⁴

Prosecutors can, of course, consider the pros and cons of charging a child in adult court. Indeed, Gus Sandstrom stated that each district attorney’s office in the state has its own internal evaluation process to determine whether or not to directly file a case in adult court.¹⁵  But prosecutorial discretion cannot substitute for a full adversarial hearing before a judge. No law requires prosecutors to consider all the factors that juvenile courts must before transferring a child, nor are they required to provide any written explanation of their decision. Our research suggests that prosecutors’ decisions to file in adult court depend almost entirely on the nature of the crime coupled with the extent of news coverage and public outrage. There is little indication they weigh carefully such factors as a child’s potential for rehabilitation, mitigating circumstances, or the child’s competency to stand trial as an adult.

All defendants in the United States have a right to due process of the law, which requires that they are “competent to stand trial.”¹⁶ They must be able to understand the charges against them; have a basic understanding of the roles of their own and opposing attorneys and the functions of judge and jury; be able to consult with their attorney in a meaningful way; and be able to weigh the consequences of the decisions they have to make, such as whether or not to accept a plea.¹⁷ Young adolescents, however, may be ill-equipped to handle trial in adult court.

In fact, it was partly children’s poor capacity for adult criminal trials that provided the impetus for the juvenile court system in the United States. Juvenile courts are responsible for adjudicating cases against children based on their status as children (i.e., for violations of laws that are applicable only to children such as running away from home), and delinquency cases against children (i.e., for acts committed by children which would result in criminal prosecution if committed by an adult). The separate juvenile court system in the United States is based on the premise that children are different from adults and as a result are more amenable to treatment and rehabilitation. Juvenile courts seek to focus on each individual child and take into account his or her particular problems and needs while devising a treatment plan that will help the child to change and minimize the potential for future criminal behavior.

Since 1997, the MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice, whose members include leading legal and scientific professionals as well as academic experts, has been conducting a study of the competency of children to stand trial in adult court. The study has examined a broad range of factors, including children’s understanding of basic elements of the judicial process and their rights as defendants; their ability to put facts together and draw logical conclusions; and their ability to make decisions independent of pressure from authority figures. The research indicates that many young adolescents, particularly those fifteen and under, are not developmentally mature enough to be “competent.”  They are seriously disadvantaged by virtue of their age to stand trial in adult courts and to be subject to all the rules, procedures, and consequences of such trials.¹⁸

Juvenile Crime Rates

The United States experienced a sudden and troubling increase in violent crime by children and adolescents that began in the mid-1980s and continued until the mid-1990s.¹⁹ While a number of factors fueled this increase, experts point particularly to the active recruiting of children into armed drug-dealing gangs, although changes in the way crimes were recorded in the 1990s also contributed to the rising numbers.²⁰ Between 1985 and 1994, murders committed by children with guns more than tripled.²¹ Figure 1 shows the national arrest rate for children charged with murder.²²

Colorado’s experience closely followed this national pattern, with violent juvenile crime rising dramatically from the mid 1980s until the mid 1990s, as revealed in Figure 2. During the “Summer of Violence” in 1993, the state was consumed by a dramatic spate of killing by youths in affluent, white areas and previously crime-free parks. ²³ Press stories described child offenders as “kid gangsters,” “hard-core juvenile offenders,” “scary and dangerous youths,” “young thugs preying on their fellow citizens,” “the state’s nastiest young felons,” “kids doing the criminal work of adults,” “greedy, self-serving, predatory street punks,” “teenage evil,” and “tiny terrorists.”²⁴

Fortunately, the years of high juvenile crime rates were short-lived. Since 1995, the national arrest rates of children aged ten to seventeen for violent crimes has plummeted, dropping by 2002 to a rate lower than that in 1980.²⁵ As Figures 1 and 2 reveal, arrests of children for murder fell sharply nationwide as well as in Colorado in this time period.²⁶

Adult Court Prosecution Data

Human Rights Watch was unable to obtain from Colorado’s State Court Administrator statewide data on trends in juvenile and adult court prosecution of child offenders prior to 1998. However, we were given data for the five years between 1998 and 2002. The data reveal that 784 children have been charged and convicted in Colorado’s adult courts (this number does not include children who were charged in adult court but not convicted) between 1998 and 2002. Of these 784 offenders, the percentages that were ages fourteen to nineteen when their cases were filed in adult court, and the percentages that were ages fourteen to twenty-one at sentencing are displayed in Figures 3 and 4. In addition, 106 of these children, or 13 percent of the total, were originally charged with first degree murder. However, in each case the child was charged with several lesser or different crimes, and the State Court Administrator was unable to give us information on which crimes the children were ultimately convicted of, or what their sentences were.²⁷ 

Although statistics are unavailable, it is likely that the number of adult prosecutions rose between 1987 and 1998, as violent crime by juveniles rose during that period and prosecutors had expanded powers to file charges directly in adult courts. Thereafter, as Figure 5 shows, the number of children convicted in adult court declined each year between 1998 and 2002, which is not surprising given the decline in youth crime overall. Figure 6 shows the resulting decline in the numbers of offenders who were children when they were admitted to adult prison.

Some proponents of adult prosecutions for youth believe the prospect of harsh sentences, including life without parole, contributed to the decline in juvenile crime rates. In 1998, the U.S. Bureau of Justice Statistics (BJS) ran several linear regressions in order to examine this question, trying to discern correlations between sentencing and crime rates. BJS found that trends in punishment severity had an inconsistent relationship with trends in crime in the United States across all age groups.²⁸ Economist Steven Levitt found that increased youth crime rates between 1978 and 1993, and decreasing adult crime rates during the same period in several key states, including California, could be attributed almost entirely to the more punitive sentences available in the adult system.²⁹ Others have impugned Levitt’s findings for a variety of complex reasons, one of which is that, according to these scholars, Levitt’s analysis is based on variables that are interrelated, making it impossible to determine whether or not harsher sentences deter crime.³⁰

Other studies show that the threat of harsh punishment has not deterred youth from committing crimes. Criminologists Simon Singer and David McDowell evaluated the effects of New York’s 1978 Juvenile Offender Law, which reduced the age at which children could be tried as adults and face adult sentences. They analyzed arrest rates of children in New York for four years prior to the enactment of the law and for six years after and compared these rates with those for control groups of thirteen- and fourteen-year-olds in Philadelphia, and with slightly older offenders in New York. The researchers found that New York’s punitive Juvenile Offender Law “did not affect juvenile crime.”³¹ Social scientists Eric Jensen and Linda Metsger reached a similar conclusion. They examined arrest rates for five years before and five years after the passage of a law in Idaho that enabled children to be sentenced as adults, and found no evidence that the law had any deterrent effect on the level of crime committed by children.³²

Figure 1

Source: Data obtained from the National Center for Juvenile Justice, “Juvenile Arrest Rates by Offense, Sex, and Race (1980-2001),” May 31, 2003 (developed for the Office of Juvenile Justice and Delinquency Prevention, based on unpublished data from the Federal Bureau of Investigation and from the FBI’s Crime in the United States Reports, Population Data from the U.S. Census).

 

Figure 2

Source: Arrest data—Colorado Bureau of Investigations Annual Reports (1980-2002). Population data—Colorado State Demographer’s Office, Department of Local Affairs.

Figure 3

Source: Jessica Zender, Policy Analyst, Planning and Analysis, Colorado Office of the State Court Administrator, November 5, 2004.
Figure 4

Source: Jessica Zender, Policy Analyst, Planning and Analysis, Colorado Office of the State Court Administrator, November 5, 2004.

Figure 5

Source: Jessica Zender, Policy Analyst, Planning and Analysis, Colorado Office of the State Court Administrator, November 5, 2004.

Figure 6

Source: SB94 N-Trails Report, Fiscal Year 1999-2000, Omni Institute, April 2001 (report prepared for the Colorado legislature on the implementation of Senate Bill 94).