The trend of current criminal law acknowledges that whenever possible children charged with crime should not be treated as adults. The Florida Bar has been pushing for judges rather than prosecutors to determine when a child should be treated as an adult.
|Free Our Gang from Prison
In Florida, juveniles whom prosecutors have charged as adults or young adults up to the age of twenty-two may be granted Youthful Offender status for a second chance. This may happen even over the objection of the State Attorney’s Office if a judge can be persuaded with effective arguments to make a finding that a child or young adult qualifies under the statute.
A young person who pleads guilty under the Youthful Offender Statute may preempt the application of draconian sentencing laws in the following ways:
First, any harsh drug minimum mandatory sentences that would normally be triggered by conviction of a significant drug offense may be avoided. For example, in drug trafficking cases for drugs such as marijuana, heroin, cocaine, methamphetamine or oxycodone the outrageous long term sentences typically of three, ten, fifteen and twenty-five years of prison may be avoided.
Second, a young person charged with various firearm counts may be able to avoid specified minimum mandatory sentencing which a judge would otherwise not be able to sentence below. For example, in a case of possession of a sawed-off shotgun, a young defendant could avoid a minimum mandatory sentence of three years on the firearm count.
Third, in cases of sexual battery, lewd and lascivious conduct or sexual assault, mandatory sex offender probation conditions can be avoided under the Youthful Offender statute. Many times young people are charged as adults even when the actual sexual conduct was consensual. For example, when a High School senior has consensual sexual relations with a freshman whose age falls just shy of recently amended Florida Romeo and Juliet statutes. Also, in a recent article Richard Sanders makes a compelling argument that imposing mandatory sex offender probation conditions is not required under the Youthful Offender Statute despite some poorly reasoned case law to the contrary.
Finally, the large fines typically imposed in significant criminal cases can also be avoided under the Florida Youthful Offender Statute if the presiding judge is persuaded that the young offender neither has the means nor ability to pay or that a fine would be detrimental to becoming a productive citizen in the future.
Young people perceive the passage of time differently than adults and imposing any jail on a young person is a much harsher punishment in actual deprivation than a similar punishment to an adult. Further, as psychiatrists have long noted and as the U.S. Supreme Court has recently come to realize, the brain functioning properties of children may them more likely to do foolish things, to not think thru things as an adult would and to not be as responsible as an adult might be.
Under Chapter 958 of the Florida Statutes the Court merely needs to make a finding that a qualifying defendant would benefit from a set of sanctions which are likely to improve his or her “… chances of correction and successful return to the community.” This, of course, should be the aim of every judge in every criminal case. Yet too often our best judges have their decision making tied by legal restrictions and are kept from doing their most important job, which is constructing a sentence that punishes as little as possible while still deterring crime. The goal of a good judge is to sentence is such a way that a defendant does not become a ward of the state, but instead becomes a productive, law-abiding citizen.
Right now in Florida it’s prosecutors rather than unbiased Judges who make important initial filing decisions on whether juvenile offenders will be treated as adults. Because of harsh Florida sentencing guideline ranges a charge filed against a child as if he were an adult makes it much more difficult for a Clearwater criminal defense attorney to save that child from being brutalized within Florida’s horrific criminal justice system.
|James Dean in a Juvenile Arrest
Finally, after over ten years of debate the Florida Bar will become an advocate for young people charged with Florida crime by demanding that judges rather than prosecutors make initial filing determinations for juveniles and that mandatory direct filing should be abolished. The bar committee unanimously made the following findings to change current direct filing law as it relates to juveniles charged as adults and found in Florida Statutes Section 985.557:
* Children with prior felonies should only be direct filed if the child is charged with homicide or the child is at least 16 years of age at the time of the offense, and has been charged with a felony crime involving violence against a person in which the offense was heinous and premeditated, and a written explanation as to why the child was direct filed has been filed with the court.
* Children with prior felonies should only be direct filed if the child is at least 16 years of age at the time of the offense and has been charged with a felony crime of violence against a person.
* Children should not be direct filed on misdemeanor offenses.
* Children who have been direct filed should be entitled to a pre-adjudication reverse waiver hearing, i.e., a judicial review hearing as to whether the child should be prosecuted in adult court or transferred back to juvenile court (as most states have).
This change of law would have directly helped a sixteen year old boy I represented in Clearwater, Florida. He was charged as an adult facing a minimum mandatory prison sentence for using a shotgun to break into a car by shattering the side window not by firing but by striking it with the butt of the rifle. Because he’d been charged as an adult the Judge had limited ability to give a fair sentence even under the Youthful Offender Statute.
The boy’s fate hung in the hands of a Pinellas jury. At trial the jury accepted the argument that by using the shotgun as a tool rather than a shotgun the boy should not be found guilty. All of this unnecessary risk could have been avoided if only the Judge rather than the prosecutors could determine if a child should be treated as an adult.
How Florida treats young people charged with crime has been especially troubling. In Tampa Bay, Florida many parents were outraged to find that their children had been falsely listed in secret law enforcement gang membership lists which allowed local Largo police to groom these children as future criminals. Yet occasionally the crime itself becomes the punishment as happened recently when three young Floridians stoled and snorted cremation urn ashes believing it was cocaine.
Ideally both the defense and the state attorney’s office would be allowed to present facts to the judge in a preliminary hearing at which the Judge would make an informed decision distanced from public opinion and politics. Clearly even if the Court makes an initial decision to direct file a juvenile as an adult providing the mechanism of a reverse waiver hearing allows the Judge to send the case back into the juvenile court should it be appropriate before actual sentencing so that the sentence is much more likely to be fair.
Your favorite Clearwater Criminal Defense Attorney isn’t surprised that one may choose to spend a rebellious youth seeking ever greater risks and ever higher highs.
But let me give some unsolicited advice.
|Monet, Feral Florida Youth, 1886
If you happen to find yourself in another person’s home uninvited, say while committing the crime of burglary, it’s very unlikely that those fancy gilt urns up on the mantle next to the flowers over the marble fireplace really contain cocaine, heroin or crushed oxycodone.
Yet three feral youth of Florida made some bad decisions after burglarizing an Ocala home by taking the cremated ashes of the victim’s father and two Great Danes, then optimistically mistaking the ashes for drugs and ingesting them.
A Florida Circuit Judge in Ocala has sentenced the three snorters to eight years of prison, good thing those two dogs were already dead as the Judge might have given an even harsher sentence.
Press reports noted that:
Detectives investigating the case said the accused men told them they thought the urns contained heroin, cocaine or crushed pills and decided to taste and snort the contents. After the men saw a story published in the newspaper, they realized what they had allegedly snorted were the remains of the victim’s woman’s father and her two dogs.
The eight year sentence is on it’s face unfair and unconscionable. Deep in the press reports hides the fact that the three youths were just that, only aged 19, 20 and 21. A Clearwater Criminal Defense Lawyer assumes that the sentencing Judge did not grant any Defense Motions for a Reduction of Sentence based on Florida’s Youthful Offender Statute due to the nature of the offense, prior unlawful conduct or other pending burglaries and grand thefts. Invoking the Youthful Offender statute would have allowed the Judge to go under the Florida Sentencing Guidelines to give a fair and reasonable sentence.