Colorado's Unforgiving Prosecution of Juveniles in Adult Court

Below is an interesting article about prosecuting juveniles as adults by Joel Warner from Westword, a Denver Weekly. In the mid 1990's, Colorado prosecutors were given discretion to "direct file" adult criminal charges against juveniles. This is somewhat similar to the 1995 change in Pennsylvania law.

The big difference between Pennyslvania and Colorado is that Colorado does not provide the opportunity for a juvenile charged as an adult to be decertified back to juvenile court. Apparently, the die is cast in Colorado once the DA makes his decision.

Here is the Westword article:

Alan Sudduth was sixteen years old when prosecutors charged him as an adult.
​Our cover story this week recounts the tale of Alan Sudduth, a juvenile who was sentenced to seventy years in prison in 1996 for the murder of a cab driver -- even though a recent hearing showed that the prosecution's case was full of holes, earning Sudduth a new trial.

Sudduth was caught up in a movement that grew out of the so-called Summer of Violence in 1993, which gave prosecutors more leeway to "direct file" charges against kids as adults, without having to hold a hearing to determine whether the defenders should be taken out of juvenile court. Colorado's direct-file system has been criticized by criminal defenders and youth advocates ever since -- and Sudduth's case may be a glaring example of the system's drawbacks.

The state's current direct-file system was a response to growing concerns about crime in the 1990s, says Kim Dvorchak, chair of the Colorado Juvenile Defender Division. "What had been happening before was that when a child committed a serious crime, the DA would have to petition the juvenile court judge to waive jurisdiction and send the case to adult district court," she says. "In the 1990s, crime went up and the judicial transfer process was perceived as cumbersome. You had to have a hearing. There were defense lawyers involved and they might get evaluations and evidence. It was like a mini-trial."

So to get tough on crime, the Colorado Legislature passed a series of laws that allowed prosecutors to bypass judicial hearings and direct file kids fourteen and older for class 1 or class 2 felonies and other crimes. That gave DA;s offices widespread new authority, says Dvorchak. "The direct-file statute relieves a prosecutor of having to prove the child is no longer amenable to treatment in the juvenile system," she explains. "Even when prosecutors are seeking the death penalty, they have to give notice. It's a separate sentencing hearing, and a jury decides whether or not to impose the death penalty. Even that level of due process is absent from the direct-file statute."

Colorado isn't unique in having direct-file laws. Fourteen states allow district attorneys to direct file kids as adults, something often referred to as judicial waiver. Some states have even passed mandatory waiver laws, meaning that kids over a certain age accused of first-degree murder have to be charged in adult court, no matter what defense attorneys or prosecutors might say.

But Colorado is unique in one regard, says Dvorchak: "We have no ability to return kids to juvenile court. The majority of other states that have direct-file or mandatory waiver laws give the child an opportunity to challenge adult-court jurisdiction either at pretrial or at sentencing. As Colorado's direct-file statute currently stands, there is no provision that allows defense attorneys to challenge the prosecutors' decision that a child should be subject to adult laws instead of juvenile laws."

And that's a problem, says Dvorchak, because once such a decision is made, it can have drastic consequences on the kids involved. For one thing, as part of a direct file, the prosecutors can decide the youth should stay in adult jail pending the conclusion of the trial. Since these jails don't have separate facilities for juveniles and the kids can't be mixed in with the older inmates, that often means the youths are subjected to 23- or 24-hour cell lockdown. There are often few of the recreation and education opportunities available at juvenile facilities, and the young inmates aren't allowed contact visits with their families. "The conditions are almost like death row," says Dvorchak. "They have worse conditions than the adults."

Over the past couple of years, there have been two prominent examples of teenagers committing suicide while incarcerated in local adult jails, one in Pueblo and one in Denver.

Dvorchak says there are also major problems with sending kids through court proceedings designed for adults. "Reports have found that prosecuting children in adult court increases recidivism," she says. "Children's experiences going through the adult court proceedings are so negative. In juvenile court, it's a much friendlier atmosphere. Most people in the juvenile court system are interested in rehabilitating these kids, getting them on the right track. That's not what happens in adult criminal court. It's a much more sterile environment."

Alan Sudduth's case seems to demonstrate these difficulties. In January, an Arapahoe County District judge vacated his seventy-year sentence and granted him a new trial because he found that Sudduth's original defense team hadn't properly looked into the facts of his case before counseling him to plead guilty and take the prison sentence. If the court had been required to hold a judicial transfer hearing in 1995 before prosecutors charged Sudduth as an adult, Dvorchak suggests, some of the issues that Sudduth's lawyers had failed to take into account might have come out. That included questionable crime-scene evidence; the fact that Nicholas Reed, another boy involved, had repeatedly confessed to the murder; and how Sudduth's family connections to the Rollin' 30 Crips had made him afraid to snitch on Reed or anyone else.

Instead, the Arapahoe County District Attorney's Office immediately charged Sudduth, Reed and another girl involved as adults and slapped them all with first-degree murder charges. Then prosecutors gave each of them different plea deals, depending on which of the three was willing to point the finger at the others. It's a common strategy used in direct-file cases, says Dvorchak: "It creates incredible pressure in adult court to have kids testify against each other or enter into a plea bargain. There is a lot of pressure for kids to plead guilty or testify against others because they are facing life without parole at the time. That's an insane concept to a sixteen-year-old client."

Sixteen-year-old Sudduth apparently had trouble understanding that concept. After he was imprisoned, he petitioned the court for years, arguing that his defense attorneys had misadvised him about his plea deal, saying he'd only serve ten years of his seventy-year sentence.

It's possible that Sudduth misunderstood his lawyers when they explained the plea deal in 1995. But even if that were the case, Dvorchak thinks it's another argument against direct-filing cases like this. "Studies show that children who are fourteen, fifteen and sixteen really don't know what is happening in adult court," she says. "They simply can't appreciate what is coming down the pipe. It's hard as counsel to be put in the role of explaining these things to a child."

And in Sudduth's case, his lawyers were the only ones who could have explained it. His dad had been long out of the picture, and his mom wasn't much better. She only visited him one time when he was in jail, and then stayed just for a half hour. In the meantime, no one assigned Sudduth a guardian ad litem to help him understand the process.

That left Sudduth with no support at all, facing a life sentence that he could likely hardly comprehend and no direction whatsoever except the gang rules drilled into him. So he took the plea deal for seventy years -- a deal that, fifteen years later, looks like no deal at all.

Maybe Nicholas Reed, the kid who's repeatedly confessed to the murder but got a lighter plea deal of 48 years, put it best. In 2008, an investigator working on Sudduth's case sat down with him in Sterling Prison, where he's serving out his sentence. He told her he now regrets blaming Sudduth for the crime and not coming clean. But he says at that stage of his life, he didn't know any better.

"You're given a time and you have no perception of what that actually is... when you've only lived fourteen to sixteen years of your life," he said. "I wish -- I just wish we would've had the representation back then. I wish somebody would have just whispered in my ear."