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Unfettered Discretion, Negative Outcomes, and No Oversight: California’s Need for Data Collection on Juveniles Prosecuted as Adults
by Francis V. Guzman

Prosecuting children as adults and sentencing them to serve time in the adult criminal justice system is one of the worst things the state can legally do to children. The adult criminal justice system is designed primarily for punishment. Adult jails and prisons are dangerous places that are often severely overcrowded and extremely violent, especially for youth offenders sentenced to serve time among adult prisoners. The adult system offers little to no education or rehabilitative services for inmates, services which are crucial for youth. The decision to prosecute a child in the adult criminal court is an important one, yet the state does not collect sufficient data to analyze whether it is a wise policy.

Youth prosecuted in the adult system are suffering while in the system, and once they get out. Youth sentenced and jailed in the adult system experience unacceptably high rates of physical and sexual abuse while in custody and high rates of recidivism once released from jail.1 Additionally, permanent criminal records that result from adult convictions can limit a young person’s opportunities to obtain housing, employment, and admission to institutions of higher education.2

Additionally, juveniles prosecuted in the adult criminal system often receive extremely lengthy prison sentences. As recently as 2012, California had over 300 juvenile offenders serving sentences of life without the possibility of parole in the state prison system.3 By some estimates, almost 60% of youth serving life without parole sentences in the state, received the harshest punishment available for their first offense.

Unfortunately, California does not collect adequate data on cases involving children prosecuted as adults, including those filed in adult court at the discretion of local prosecutors. For example, the state does not collect data on a youth offender’s background—such as whether the youth suffers from a developmental disability or whether he is being charged for his first offense—or on case outcomes—such as whether sentencing enhancements were used to prosecute the youth or the actual sentence in number of years that the youth received in the adult court. As a result, California has no way of knowing the effectiveness of our current charging practices, the needs of our current prison population, or the true impact of adult criminal court punishments on youth offenders and communities.

Direct File Prosecutions

In 2000, the California District Attorneys Association successfully campaigned for the passage of Proposition 21, thereby creating the prosecutorial power to directly file in adult court, charges against youth as young as 14 years of age for certain criminal offenses without the benefit of a judge carefully reviewing evidence and weighing the interests of public safety and the ability of a young person to be rehabilitated. In the “direct file” 4 process, there is no hearing to determine which court is appropriate to hear a juvenile’s case, and there are no formal standards for deciding which cases to directly file in adult court. Additionally, prosecutors have unfettered authority to direct file certain juvenile cases in adult court with no judicial oversight to prevent bias or arbitrariness in decision-making, and no mechanism for returning appropriate cases back to the juvenile court.

Statistics show that California’s direct file law has cast too wide a net. For example, California prosecutes between 7505 and 9006 children a year in the adult criminal justice system. Of these youth prosecuted as adults, approximately 75% were charged as adults at the discretion of the county prosecutor.

However, while the direct file law was contemplated for the most serious cases and repeat offenders who had exhausted rehabilitative programs in the juvenile system, all existing research indicates that it is common for prosecutors to direct file mid-level felony cases against teenagers who have had no previous experience locked up in the juvenile system. For example, research recently conducted on Colorado’s direct file data showed that 85% of those directly filed involved mid- to low-level offenses.7 Similarly, in California, limited data show that its direct file law has been used to inappropriately prosecute thousands of youth as adults for committing mid­ to low-­level offenses, incarcerate them in adult jails and prisons, and burden them with lifelong felony convictions.

A major problem with the laws that allow the prosecution of youth in adult criminal courts, including the broad prosecutorial discretion to direct file, is that these laws have resulted in significant overrepresentation of youth of color among juveniles transferred to the adult system in California.8  In 2012, Black and Latino youth combined made up 58% of the California’s juvenile population aged 10-179, yet they made up nearly 87% of all juvenile cases processed in California’s adult criminal court.10

Direct File is Harmful to Youth and Communities

Prosecutors claim that discretion to prosecute certain youth as adults is necessary to combat juvenile crime and to improve public safety but nothing could be further from the truth. The direct-file law is ineffective in achieving its promised objectives. Contrary to what voters intended, the direct-file law has done little to deter juvenile crime. A large body of research shows that prosecuting children as adults makes it less likely they will be rehabilitated and become productive members of society. For example, a Columbia University study11 compared juveniles prosecuted in New Jersey’s juvenile justice system with New York teens who were prosecuted for the same crimes in adult court. The study showed that the New Jersey youth who were prosecuted as juveniles had better outcomes and lower recidivism rates.

The evidence is clear that the departure from juvenile treatment is damaging children and jeopardizing community safety. However, despite these negative consequences, the state of California does not collect data on cases directly filed in the adult system by prosecutorial discretion. Existing law12 requires California’s Department of Justice to collect criminal justice data from local law enforcement agencies, including the annual number of minors whose cases were filed directly in adult criminal court. However, the data submitted combine cases filed in adult court as required by statute (“mandatory transfers”) as well as direct files made by prosecutorial discretion.  As a result, we know relatively little about the thousands of youth the state prosecutes as adults at the discretion of the prosecutor or about the outcomes of those cases.

California must improve data collection on cases directly filed into adult court by prosecutorial discretion. This is necessary to understand the impact of the state’s current charging practices. A true understanding of the scope and nature of the problem is critical to developing solutions. Improved data collection and analysis will enable the state to improve policies regarding the prosecution of youth, improve outcomes for system involved youth, as well as to improve public safety.

The Promise of Senate Bill 498

In 2015, California’s Legislature has the opportunity to take an important first step toward improving its data collection policies with the passage of Senate Bill 498, sponsored by Senator Loni Hancock. S.B. 498 will expand the scope and level of data the state collects from counties, specifically about cases involving juveniles tried as adults. This will allow the state to better understand the impact of our transfer laws and allow for evidence-based improvements.

Existing law requires California’s Department of Justice (DOJ) to collect certain criminal justice information from local law enforcement agencies and prepare an annual report presenting the data, including the annual number of fitness hearings held in the juvenile court and the annual number of minors whose cases were filed directly in adult criminal court, as well as the outcomes of those proceedings, cross-referenced with the age, gender, ethnicity, and offense of the minors subject to these court actions.13

Senate Bill 498 would require the DOJ’s annual report to include both statewide and county level information, and would expand the scope and level of detail in the information reported, by requiring, among other things, information about the county of commitment, the type of sentence imposed, the age at the time of the alleged offense, and whether gang, weapon, or other sentencing enhancements were imposed.

Increasing the scope and level of detail of county level data collected by the state, including about case backgrounds and outcomes, is necessary to improve and reform counter-productive and even harmful prosecutorial practices that currently exist at the local level. Additionally, improving California’s data collection policies will help to provide state and local decision-makers with an accurate picture of the current needs of our youth offender population and system deficiencies. Through the use of improved data collection and analysis, state and local jurisdictions can improve programs and services, tailored to the specific needs of youth offenders, and ensure successful rehabilitation and re-entry efforts. This will serve multiple goals of the justice system: improving outcomes of system-involved youth and increasing overall public safety.


Today, the juvenile incarceration rate in the United States is at the lowest point since 197514. This has not been accompanied by an increase in crime.  In fact, even with more youth out of custody, our juvenile crime rate has dropped significantly over the past 15 years.  However, one area of our justice system that has gone unchecked, disproportionately affecting youth of color, is the power of prosecutors to transfer or directly file charges against youth in adult criminal courts. Research-based reforms are necessary to restore balance to the treatment of juvenile offenders, reduce racial disparities, and address juvenile crime in a sensible and humane manner. California needs solutions that guarantee constitutional due process for children facing adult prosecution, as well as opportunities for rehabilitation in programs proven to prevent recidivism in the juvenile system. Senate Bill 498 holds the promise of bringing California much closer to achieving such a goal.

Francis (“Frankie”) V. Guzman is a juvenile justice attorney at the National Center for Youth Law, Oakland, CA. He is working to reduce the practice of prosecuting and incarcerating children in California’s adult criminal justice system and advocating for alternative sentencing and local treatment for youth charged with serious offenses statewide.

1 “Effects on Violence of Laws and Policies Facilitating the Transfer of Youth from the Juvenile to the Adult Justice System: A Report on Recommendations of the Task Force on Community Preventive Services.” Morbidity and Mortality Weekly Report, Center for Disease Control. November 30, 2007. Vol. 56. No. RR-9.
2 “Addressing the Collateral Consequences of Convictions for Young Offenders,” The Champion. National Association of Criminal Defense Lawyers.…
3 “When I Die, They Will Send Me Home.” Human Rights Watch, 2012.
4 Direct file refers the law which gives county prosecutors the discretion to “directly file” charges against children as young as 14 years of age in the adult criminal court.
5 In 2013, California probation departments reported information on 755 transfers to the adult system. Juvenile Justice in California 2013, Office of the Attorney General.…
6 In 2011, California probation departments reported information on 912 transfers to the adult system. Juvenile Justice in California 2011, Office of the Attorney General.…
7 Re-directing Justice, Colorado Juvenile Defender Center.…
8 Juvenile Justice in California 2013.….
9 Juvenile offenders and victims: 2014 national report. Office of juvenile justice delinquency prevention.
10 Juvenile Justice in California 2013.….
11  Jeffrey Fagan. The Comparative Advantage of Juvenile Versus Criminal Court Sanctions on Recidivism among Adolescent Felony Offenders.…
12 California Penal Code, Section 13012.5.
13 California Penal Code, Section 13012.5.
14 Annie E. Casey Foundation.