Lopsided percentages of young people charged as adults in Colorado courts appear to be ethic minority youth, an apparent bias rights activists suggest should be examined, especially given that Colorado is one of only 14 states in the country to embrace the hard-line “direct file” system, where district attorneys decide, without judicial review, whom to try as adults. According to analysts, the “direct file” system can be counterproductive and, in Colorado at least, is plagued by inadequate data collection and review. Indeed, even the most basic information, like the ethnic makeup of the juveniles being charged with adult crimes, is unreliable or simply not collected.
Independent investigations conducted this month by the Colorado Independent and members of the Colorado Criminal Defense Bar came to the same conclusion: that Colorado DAs seem to charge ethnic minority youth as adults more frequently than white youth accused of committing the same kind of crimes. The findings, however preliminary, add more fuel to calls for more information on the system.
“We don’t even know how many kids are being considered for direct file or threatened with it. We don’t know how many kids took a plea to keep them out of adult court,” Sandy Mullins of the Colorado Criminal Defense Bar told the Independent.
Digging for data, Mullins said that she and her colleague Kim Dvorchak could access only data that listed 15- to 17-year-olds tried for a crime in criminal court and those in the juvenile system. There was no data available from the state court system on individuals undergoing a direct file procedure, much less only threatened with direct file adult charges.
The Colorado Independent found that, according to the Colorado Judicial Branch Division of Planning and Analysis, between 1 January 2008 and 31 December 2009 there were 273 children tried in adult courts. Of those children, 73 were black, 34 Hispanic, 2 Indian and 153 white. In addition, 11 girls and 261 boys stood trial as adults. (For one case there’s no data at all, including gender, and in 11 cases ethnicity is listed simply as “other.”)
Those numbers don’t match up with the Colorado population. The percentage of black youth undergoing adult court proceedings is 27 percent even though black people in 2008 made up only 4.3 percent of the state population; Latinos made up 12 percent of youth cases tired in adult courts although Latinos constitute 20 percent of the state population; and whites made up 56 percent of youth undergoing adult court proceedings even though whites make up roughly 71 percent of the Colorado population.
Little and unreliable data
There are certainly a great many factors to weigh in considering the meaning of these numbers but, again, researchers run up against a wall in searching for reliable data.
Although the relatively low percentage of Latino youth suspects landing in adult court seems encouraging, Mullins said that in El Paso, Arapahoe, Weld, and Douglas counties at least, Latinos seem to be identifying themselves as white. Mullins and Dvorchak researched each direct-file case they could find in those counties and discovered that often defense attorneys had requested interpreters for their “white” clients. In interviews with the attorneys, Mullins and Dvorchak found that most of those clients were Latinos. Mullins said that in some counties where a white majority of suspects was reported, in fact, many were mis-reported Latinos. Fact is, she said, “we have no idea what it looks like for the state. This is obviously a data-entry problem.”
Jessica Zender, a data analyst with the Colorado Judicial Branch, said that race is actually self-reported.
Mullins said Denver appears to be the most accurate in its reporting and the data there demonstrates a high prevalence of “kids of color” being tried as adults. “We know that there is a racial component, that there is disproportionate impact on kids of color. But we lack the data to actually use that number to create change.”
Statistics on young people involved in the state’s corrections Youth Offender System (YOS) indicate that there was a surge in Latino inmates during Fiscal Year 2009, the kind of statistical anomaly that would indicate a data collection problem. The YOS program saw 60 percent of incoming youth categorized as Hispanic last year. Among the group of 61 individuals, there were 38 Latinos, 10 African Americans and 13 European Americans.
Guesses at factors and motivations
Ted Tow, executive director for the Colorado District Attorneys Council, told the Independent that although “there can be no debate that there is minority over-representation,” the reality is that communities of color are affected disproportionately by crime across the board.
“It is easy to look at raw numbers and say that X number of blacks get charged, but unless you know that they are robbing or shooting other blacks, it is hard to say what the racial overtones are,” Tow said. “We don’t track it either. I’m not saying we have that data but it is a neglected feature.”
Tow said that data collection is essential to a fair judicial system but that DAs here don’t discriminate based on race in direct-file cases. “Race is not a factor that we consider when making those decisions.” Frankly, he said, much of this has to do with gangs. “The reality is that direct file is often used in gang situations and unfortunately gang involvement is greater in minority communities than in white communities.”
He said that minority communities are affected by a number of factors that add to increased crime activity, including school drop out rates and single-parent households. “It is unfortunate but it’s a socioeconomic situation that can’t necessarily be tracked back to a racially biased criminal justice system. I think that direct-file will carry the same basic numbers.”
Mullins said that without data, we can’t guess at the motivations, conscious or unconscious, that shape the direct file system here. “We know that these are kids that are vulnerable children but there is no place where that information is integrated to really capture why these kids are being charged as adults.”
A direct-file netherworld
As the Colorado Independent has reported previously, young people charged with adult crimes but still awaiting trial– that is, teenagers unconvicted of any crimes– can fall into un-tracked life in adult prisons, where their constitutional rights to basic services like education and mental health care go un-served, where authorities, including county sheriffs, readily describe facilities as inadequate to ensure safety for youth housed in adult prisons.
State Sen. Evie Hudak, D-Westminster, introduced legislation this session to increase education for direct-filed youth and, in the process of writing the bill, struggled to find adequate data.
“A number of these kids are simply acquitted,” she told the Independent last month, adding that a quarter of the cases where juveniles are charged as adults are dismissed but that the resulting gap in their education leads to recidivism and also depression and attempts at suicide.