Judges, Prosecutors Compete For Youth Charging Power

Determining whether a youth offender should be charged and sentenced as an adult was at the sole discretion of Colorado judges until 1993, when prosecutors assumed the responsibility. Now, a proposed legislative bill would return the discretion to judges.

House Bill 1271 proposes a change in the practice known as direct-filing. The bill has made it through two committees and awaits further consideration by the full House.

Dan May, the district attorney for El Paso and Teller counties, opposes the bill. He said prosecutors are less likely than judges to send youth offenders through the adult justice system, and more likely to place juveniles in alternative sentencing programs, such as the successful Youth Offender System in Pueblo.

“We do send some armed robbers, assaulters and other people there,” said May. “They’re coming out with a trade, a job, an education. They’re employable. The Legislature is stripping our ability to deal with the most brutal, violent criminals. It’s also stripping our ability to rehabilitate kids who have a chance to succeed.”

May presented data showing that youth arrest and crime rates statewide have declined since 1993, when prosecutors regained direct-filing discretion. He said a juvenile offender convicted as an adult is five times more likely to commit a crime after serving a sentence.

Rep. B.J. Nikkel, the House’s Republican majority whip, is backing the bill. She said judges are more impartial and can better decide whether a juvenile should be direct-filed.

“Prosecutors are not trained to spot for problems, such as kids with developmental disabilities and mental health issues,” she said. “A number of people have complained about overly aggressive prosecutors, about abusive discretion, threatening to charge a youth as an adult if they don’t agree to a certain plea deal. That’s part of the abuse of power.”

Nikkel said the bill allows prosecutors to suggest charges or sentencing, but judges will have the final say.

Nikkel and May agree that a youth indicted for first-degree murder should be charged as an adult. Nikkel said supporters of the bill have complained that the current law was designed to address the most serious crimes, but since has expanded to include mid-level crimes, such as assault and robbery.