Colorado criminally failing youth suspects
DENVER– Juveniles charged as adults in Colorado and awaiting trial as inmates in adult prisons find themselves part of a system that fails to educate them, provide them equal access to services like mental health care or even to ensure they are housed according to strict safety guidelines. People involved in the system admit to not knowing how many young people charged as adults are presently being held by the state and in which prisons. Colorado sheriffs frankly admitted to the Colorado Independent that their adult facilities are inappropriate for managing juvenile detention.
Jeanne Smith, director of the Colorado Division of Criminal Justice, said a large part of the problem is a lack of data. She told the Independent that the state doesn’t conduct the most rudimentary research on minors being held in adult prisons, a fact she suggests is at odds with the state’s aggressive direct-file law, which grants prosecutors not judges the decision-making power to try juveniles as adults.
“It takes money to do evaluation and research and right now Colorado doesn’t have it,” Smith said. “I don’t know that there is anybody in the state who has done a study of the county jails and what they are doing,” Smith said. “The state judiciary has the numbers on how many [juveniles] get filed on but they don’t know how many are being held in juvenile facilities or in county jails.”
Minors being held in adult prisons often can’t take advantage of services offered to adults because state law requires for safety reasons that minors remain separated from the adult population. As a result, juveniles awaiting trial as adult are often held in solitary confinement.
Discussion surrounding a bill introduced this legislative session by State Sen. Evie Hudak, D-Westminster, highlights the netherworld these youth suspects have fallen into in Colorado.
As the Colorado Independent reported last month, Hudak is seeking to address the fact that the state is in violation of its constitutional responsibility to educate these minors. But representatives for the Colorado Association of School Boards say educating these kids is the state’s responsibility, not the responsibility of the school districts, and that there is no money to pay teachers and buy supplies and set up space for instruction. Jane Urschel, a lobbyist for the school boards, told the Independent that Hudak’s bill would simply establish an unfunded mandate. All parties agree this is a serious problem in search of a solution yet Hudak admits her bill will likely fail to pass this year as lawmakers struggle to cut millions from the budget.
In 2008, Colorado “direct filed” on 179 juveniles, according to the Legislative Council. Although numbers vary widely depending on whom you ask, Legislative Council estimates that an average of only 15 juveniles would receive educational resources under state Sen. Hudak’s bill.
But Jessika Shipley, the research associate for the state who wrote the fiscal note for the bill, said that the number 15 was merely “a stab in the dark” because no department currently tracks the numbers of juveniles held in adult jails. There’s no way at this point, she said, to solidly map the contours of the problem the bill hopes to address.
Colorado law requires that prison administrators and employees keep juveniles held in adult facilities separated from adult inmates in a way that they can neither be seen nor heard. Most all parties agree the requirement is a good policy but they also agree it forces juveniles into isolated cells and reduces their access to resources and services.
Smith told the Independent that a 2008 panel on direct-file laws and juvenile-adult detention raised concerns that young suspects held in isolated conditions might be suffering higher levels of serious and even life-threatening depression.
“I can say that was a concern at the committee hearing… but can I tell you that there was any study done on the matter? Can I tell you that X amount of times [a suicide] has happened? No, I can’t tell you that. It was an issue that was raised,” Smith said, again lamenting the lack of data.
According to a report put out by the Campaign for Youth Justice , three juveniles awaiting trial in adult facilities committed suicide over the last two years. The circumstances vary and have not been reported in detail.
James Stewart, a minor housed in Denver County Jail, committed suicide an hour after being placed in solitary confinement. Stewart had reportedly fought with his cell mate, which led to his placement in solitary.
Sandy Mullins, executive director of the Colorado Criminal Defense Bar told the Colorado independent that Stewart had begged not to be isolated.
In Pueblo County Jail, Robert John Borrego, Jr., 17, had been housed for about 20 days in a space with other juveniles before he committed suicide.
Pueblo County Sheriff’s Office Captain Dave Lucero declined to comment on the Borrego case because it is currently the subject of a lawsuit. He said he didn’t think the death was tied to the facility but that he strongly agreed the facility was not suited to housing minors. Lucero sent a letter to the Department of Corrections outlining his concerns, explaining that Pueblo’s jail wasn’t built to manage juveniles and felt it would be better to house them in an outside facility.
Kim Dvorak, a criminal defense attorney who advocates for juvenile rights, told the Independent that Denver County Sheriff Major Vickie Connors sent a similar letter. Connors didn’t return requests for comment.
Lucero said that complying with “Colorado sight and sound regulations” was difficult but that he can house a “couple of juveniles in medcells,” which are 23-hour isolated lock-down facilities.
“While they are in a 23 hour lock-down area, we do provide them with games and TVs. We make sure we get them out for the recreation time when we can, which is inconvenient because we have the majority of the adult population that we have to regulate throughout the day. So we might not be able to recreate a juvenile till 4 o’clock, 3 o’clock in the morning,” Lucero said.
Lucero said in some cases he simply uses a curtain to keep the juveniles out of sight of adult prisoners.
These sorts of problems are intrinsic to the “direct-file” system, which allows D.A.’s to try as adults juveniles 14 years of age and older, mostly on suspicion of violent crimes, according to child’s rights advocates. Although juveniles in Colorado used to undergo a transfer hearing by a judge who decided whether a juvenile should be charged as an adult, in the wake of the 1993 “summer of violence,” the General Assembly voted to institute direct file to address gang crimes. Child advocates have been working for years to return to the system that called on judges to make the decision.
But Ted C. Tow, executive director for the Colorado District Attorney’s Council, said D.A.s here guard their direct-file privileges closely. He said “transfer hearings” require members of the judicial branch to do work that rightly belongs to members of the executive branch. Direct file is a better way to get at justice, he said.
But Tow spoke also of Colorado’s Youthful Offender System (YOS), a program that reduces sentences while preparing those convicted under direct file to be productive members of society.
“In other words [a judge is] going to sentence you, say a juvenile who has been convicted as an adult where he pistol whipped somebody. The judge will say ‘I am going to sentence you to 18 years in prison but I am going to suspend that if you successfully complete the YOS program.’ That prison sentence hanging over their head is one of the main reasons that [the YOS program] is so successful. Because the [juveniles] have every incentive to keep their butt out of big boy prison.”
Tow said he didn’t have up-to-date data but guessed that about 100 direct files occur per year, or about 1 percent of felony cases filed against juveniles.
Mullins, of the Colorado Criminal Defense Bar, said his organization would like to push legislation this session that would track the number of children who die while being held in the state’s prisons and that would document the conditions in which they are being held.
Unfortunately, this is a bad year to act, she said, referring to the budget crunch.