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Christian in juvenile detention in early 2016.
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With his mother, May 2015.
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Ask people who know Christian Haro Cotero best, and they will describe him as a sweet, if troubled, 16-year-old kid, kind of a butterball with round cheeks and an early-Elvis pompadour, who helped his mother care for his older brother, who has spina bifida and uses a wheelchair.
But if you ask prosecutors in Santa Clara County, Christian is a danger to his community, an unreformed gangbanger who deserved to be charged as an adult for a crime committed when he was only 14: the nonlethal stabbing of a 17-year-old in November 2014. In making this assessment, however, prosecutors from District Attorney Jeffrey Rosen’s office deployed a legal strategy that purposefully—and, many legal experts say, unjustly—disregarded a host of mitigating factors that may have influenced the teenager’s actions. The prosecution’s headlong rush to charge the juvenile as an adult is known as a “direct file,” a controversial tool that Rosen’s office employs with more frequency and vigor than any other Bay Area DA.
Between 2010 and 2014, the last year for which complete data is available, San Francisco prosecutors direct-filed only six youths as adults. Alameda County, which contends with far higher violent-crime rates for youths, direct-filed 120 minors during that time—but those numbers have been dropping precipitously, and were down to seven cases in 2015. Santa Clara County, by comparison, direct-filed an astonishing 177 youths from 2010 to 2014, 35 percent more than the entire county of Los Angeles.
In Christian’s case, facts of a life marked by physical and psychological abuse were not considered by a neutral judge before the teen was charged as an adult. This is because Santa Clara prosecutors, using the wide discretion afforded to them in direct filing, were able to circumvent the usual “fitness hearing,” which allows a defendant’s lawyer to present evidence in court about a kid’s home situation, school troubles, or emotional state. Had a judge been permitted to hear such details about Christian’s life, he or she would have gotten an earful.
According to a report from the nonprofit Center on Juvenile and Criminal Justice, Christian’s physical and psychological traumas began even before he was born, when his father beat his mother, Veronica, while she was pregnant. His father was mean and domineering, barking at the children to “be quiet” and clobbering them when they weren’t. At the age of two, when his father attacked Christian’s disabled older brother and then started in on Veronica, little Christian jumped onto his father’s back to stop him. His father threw him against a wall, and the boy passed out. No one called a doctor.
After the wall incident, Veronica summoned up her courage and moved the family away from her abusive husband, from Riverside to San Jose. But Christian’s father found them and began the same routine of hitting and demeaning. Child Protective Services was referred to Christian’s home at least 16 times as the boy’s father cycled in and out of jail. Just as things began to get better, with Veronica moving her four children into a shelter, she took up with another abusive boyfriend. The violence continued.
Not coincidentally, Christian has struggled with depression for about as long as he can remember. He was first hospitalized for cutting himself at the age of six. By middle school, his teachers had grown concerned about his binge eating and “not wanting to live,” and they referred him for counseling and psychiatric evaluation. He self-medicated with pot and booze. Then he began getting into trouble with the law; he was arrested for auto theft and put on probation. On top of all that, an older man allegedly began to stalk him, saying that he wanted to play with his “private parts” and offering him money. Christian claims that he was never touched sexually, but the man was later arrested on child pornography charges.
So by November of 2014, the ninth grader had already experienced more hardship than many adults do in a lifetime. Despite sporadic but well-meaning intervention by teachers and social workers, he had begun to affiliate with local Sureños as a way to defend himself from other gang members (already one of Christian’s friends had been shot, and another had been stabbed). One afternoon, according to police reports, the teen and a couple of his friends were walking home from school when they came across 17-year-old Manuel Esquibel. Christian suspected that Esquibel was a Norteño—possibly one of the guys who’d vandalized his mother’s car with “KILL YOU” written in dust—and started to follow him. Esquibel told Christian to “put his dukes up.” Christian instead pulled out a knife and stabbed Esquibel in the chest. The blade missed Esquibel’s heart but collapsed his lung; the teen would survive.
Everyone ran. Christian raced home and puked in his bathroom, thinking, What did I just do? He was arrested about a week later, confessed to police in an interrogation without an attorney or a parent present, and, within a day, was direct-filed by Rosen’s office on charges of premeditated attempted murder with a deadly weapon. (He was also hit with a gang enhancement, meaning that additional years were tacked on to his potential sentence due to alleged gang involvement.) Facing a sentence of 19 years to life in adult prison, he chose to plead guilty to lesser attempted murder charges in return for a 9-year sentence to be served, at least in part, at a juvenile facility.
Despite the fact that Christian had no previous criminal history of violence, the DA’s office refused to file his case in juvenile court, with its lighter sentences and emphasis on rehabilitation and education. That decision—made behind closed doors by four prosecutors with no outside testimony, no judicial oversight, and few avenues for recourse—was final.
According to most juvenile rights advocates, bestowing adult penalties on youths ignores the growing mountain of scientific evidence indicating that the teen brain is not like the adult brain. Furthermore, experts believe, teen offenders are far more likely to achieve positive outcomes if they are placed in therapeutic settings among peers, not punitive ones among older, hardened criminals. “The decision to go to adult court,” says USC Gould School of Law professor Heidi Rummel, “can mean the difference between having access to education and being released from the juvenile system, and being sent to the adult system to die in prison.”
By treating Christian and dozens of other youths as if they’re adults, and refusing to consider mitigating life factors in these decisions, the Santa Clara DA is running up against questions that are giving many in the legal world pause: Are kids who commit violent crimes capable of redemption and deserving of help, or does the seriousness of their crimes justify the harshest possible punishment? Should this choice be determined by an accident of geography? And what role does race play in all of the above?
While direct files account for a small proportion of cases involving youths facing prison sentences in California—in 2014, they were used in under 1 percent of all juvenile cases—few prosecutors in the state deploy the strategy more often than the Santa Clara Office of the District Attorney. Even as neighboring districts to the north and south have dramatically curtailed the practice, District Attorney Rosen has continued to direct-file kids as young as 14. Rosen declined two requests for an interview and responded only to written questions for this article, but an email from his public communications officer states that kids like Christian “simply should not be afforded the benefits of the juvenile court system.” Despite the fact that Santa Clara’s already low crime rate has been declining in recent years, Rosen hasn’t budged when it comes to his stance on charging kids as adults. In fact, since his election, direct files have increased as part of what he claims to be his “responsibility and obligation” to maintain public safety.
Enacted in 2000, toward the tail end of California’s tough-on-crime era, the direct-file statute is drawing renewed attention as juvenile felony arrests for serious crimes in California continue to drop—by 55 percent between 2003 and 2014—and widely accepted scientific evidence indicates that adolescents are neurologically different from adults. To continue to assert that a 14-year-old has the same decision-making capacity as a 30-year-old is now akin to denying climate change. The U.S. Supreme Court has steadily moved further and further away from previous assumptions that young people who commit crimes are the so-called super-predators of the 1990s, first eliminating the death penalty for those under 18, then ruling this year that sentences of life without parole should be extremely rare for juveniles unless there’s “irreparable corruption.” Some states, like Connecticut, have even proposed expanding the definition of “youth” to include those between 18 and 21, based on the same theories of brain development.
In fact, not only is direct file harmful for the youths in question, according to advocates and legal scholars; it also makes them more likely to reoffend later in life. There is little doubt that adult court is harsh on kids—9 out of 10 young people in California’s adult courts are convicted—and once in prison, young people are more likely to experience sexual assault. Meanwhile, a 2010 U.S. Department of Justice report found that adult prison time resulted in more recidivism and “little or no general deterrent effect” for juveniles.
By comparison, juvenile courts produce vastly more positive outcomes, designed as they are with rehabilitation in mind. “Juvenile courts look at comprehensive evidence showing why we shouldn’t just throw the kid away,” says Frankie Guzman, an attorney at the National Center for Youth Law who also spent time in California’s juvenile system and helped write a new state initiative (Proposition 57) that, among other things, would eliminate direct files. Judges deciding cases in juvenile court, says Guzman, “are supposed to take into account the hallmarks of youth, the youth’s background, and other mitigating factors.”
Because a direct-file decision is generally made within 48 hours of arrest, prosecutors often don’t have time to consider mitigating information about the kid in question. This is one of the primary reasons why many district attorneys opt not to direct-file cases, or do so only in the rarest of situations. However, in this way, Rosen’s office has proved to be an outlier. Despite instituting a supposed backstop for signing off on direct files—four different prosecutors within the office need to agree that the case is deserving of harsher treatment—Santa Clara in 2014 sent more kids to adult court than all but three California counties: San Bernardino, Sacramento, and San Joaquin.
In the Bay Area generally, direct-file numbers have been falling: San Francisco, for example, rarely does more than one or two a year, if any. Alameda County, which has long struggled with a high violent-crime rate, has managed to drastically reduce the number of direct files year after year, from 22 to 14 to just 7 last year. “I do believe that the juvenile justice system, in the majority of instances, is best equipped to address the complex needs of minors who commit crimes,” says Alameda district attorney Nancy O’Malley. Jean Roland, the managing attorney of the juvenile unit for the San Francisco DA’s office, says, “Direct file is the rare exception. We rely on the juvenile system to answer the difficult challenge to meet serious needs.” Roland adds that the San Francisco DA’s office recognized the science behind adolescent brain development by starting a young adult diversion program for youths aged 18 to 25. Though District Attorney Rosen, a Democrat, ran on a reformist, smart-on-crime platform in 2010—and in 2014 supported Proposition 47, which reduced jail terms for certain nonviolent crimes—his office continues to resist reducing the number of direct files as surrounding counties have. Guzman says that even though advocacy groups have discussed the overuse of direct files with Rosen’s office, “they haven’t gone down.” Nisreen Baroudi from the Santa Clara Public Defender Office confirms, “Crime is down. But direct files remain high.”
According to a June 2016 report by the Center on Juvenile and Criminal Justice, Los Angeles County has seven times the number of juvenile violent felony arrests as Santa Clara, but its direct files account for only 0.7 percent of the ensuing prosecutions; Alameda County’s figure is 3 percent. Santa Clara’s is a gaudy 9.5 percent. This seems unusual in a county that consistently votes liberal, has one of the highest median incomes in the nation, and is stamped with Silicon Valley’s brand of pragmatic idealism. Perhaps the reason for this dissonance resides in the rhetoric Rosen’s office uses when describing these kids. Unable to provide a straight answer about the direct-file numbers, Rosen’s public communications officer says that direct files are suitable for the kids who commit “brazen murders, robberies, and sexual assaults,” while admitting that 98 to 99 percent of youths deserve rehabilitation. Chris Arriola, the supervising deputy district attorney in Santa Clara County’s juvenile justice unit, describes juvenile court as less victim-friendly and says that direct file is appropriate “when the minor becomes more of a threat to society.”
This claim that only the worst of the worst are direct-filed, however, is contradicted by the numbers. According to Guzman and a report published by the W. Haywood Burns Institute (a nonprofit invested in decreasing racial disparity), 29 percent of the direct files in Santa Clara that were reviewed by researchers ended in a sentence of a year or less in county jail. In other words, the DA’s office is claiming that certain kids are violent felons, but judges decided in almost a third of these cases that a short stay in jail was enough. For these kids, all of whom were convicted and sentenced as adults, the potential consequences—being forced to check the “felon” box when applying to college or for a job, having a strike on their criminal record, missing vital years of education and cognitive growth locked up in a prison setting—were nothing short of catastrophic.
What makes direct files perhaps most problematic is the discretion given to prosecutors in determining what felony charges to file. Guzman explains that many crimes that lead to direct files can sound serious, but “it depends on what you charge or categorize as alleged conduct. I beat you up and kicked you while you were down, they charge attempted murder. I snatched your iPhone and made the slightest contact with your person, they charge robbery [a more serious charge than theft]. I hardly think youths who commit these acts have demonstrated incorrigibility.” When it comes to justifying their use of direct file, Guzman continues, “prosecutors don’t deal in truth; they often deal in sensationalism.”
Take the recent case of Joseph, a 17-year-old high school student in San Jose who had never been arrested until he allegedly went on a 10-day bender stealing iPhones and wallets. He is a basketball player with some learning disabilities and a supportive family who visit him in juvenile hall every single day. Since being sent to juvie last year, he has been taking college classes and started gardening. But in spite of Joseph’s strong support network and evidence that he has the means and desire to change, Rosen’s office direct-filed felony charges against him, meaning that he now faces 12 to 28 years in adult prison rather than the chance to finish high school and receive counseling. (Only his first name is used because his case has not yet been resolved.)
What’s also clear from the numbers is that more Santa Clara youths of color—like Joseph—are direct-filed to adult court than white youths. This is also true statewide; according to the Burns Institute, from 2010 to 2014 about 85 percent of direct-filed juveniles were black or Latino. Rosen’s office argues that the disproportion is caused by the number of Latino and black versus white arrests in Santa Clara. But that logic doesn’t add up. According to the county’s own figures, in 2014, 167 youths committed crimes eligible for direct file under the statute, and prosecutors chose to direct-file 24 percent of cases. While only 13 percent of eligible white kids were direct-filed, Latino kids were direct-filed at more than twice that rate (27 percent), and 18 percent of black kids received the same rough treatment.
A more likely culprit is the respective kids’ supposed gang affiliations. According to estimates made by Rosen’s office, about 30 percent of direct files are designated as gang related. While no one tracks the number of gang-related direct files in California, in 2012 CalGang, a statewide law-enforcement database of gang members, included almost 500 young people under 15 and more than 23,000 between 15 and 19, according to the Youth Justice Coalition. And they were almost all kids of color. Guzman says that this data is highly prejudicial for young defendants in particular. “Slap some gang evidence up on the PowerPoint...and the jury will give a guilty verdict because of the fears planted in their head. Gang evidence overwhelmingly taints the jury.”
Deputy District Attorney Arriola argues that youths who commit violent crimes will eventually return to their neighborhoods, which are often mired in poverty. “We need to make sure the very worst offenders aren’t all living in the poorest communities,” he says. He points out that the proportion of youths of color who end up in adult court is simply a matter of the inherent inequality in the system: “The inequity will be there as long as there’s inequity elsewhere.”
But Guzman says this community-protection rhetoric is wrongheaded. “When they say they work for victims and public safety, they don’t look at how this kid was a victim. Yesterday’s victim is tomorrow’s defendant. Charging youths as adults does nothing to bring communities peace and health.” Public defender Baroudi adds that young people in juvenile court benefit from measures like the sealing of records, whereas adult felony convictions can harm a kid’s chance to attend college, get a job, or even obtain housing.
Perhaps out of recognition that Santa Clara County direct-files more kids than its surrounding counties, the DA’s office ran a six-month pilot program called reverse remand, where public defenders were permitted to present mitigating evidence and try to get the case returned to juvenile court. This program resulted in a total of six young people being referred back to juvenile court. Christian’s counsel, Sajid Khan of the Santa Clara County Public Defender Office, tried to make a plea to get his case returned, but was denied. “It seems that Christian would be an ideal candidate for their program, but they made the decision not to consider it, which was unfortunate,” says Khan. Rosen’s office says that it did consider Christian’s case for remand, although Khan confirms that he was not asked to present any evidence to support the decision either way.
Prop. 57, the Public Safety and Rehabilitation Act of 2016, which was sponsored by Governor Jerry Brown, would eliminate direct file and require prosecutors to present evidence to a judge to prove that a youth should be tried as an adult. Young people would still be eligible for adult court, but the prosecution would need to prove that a defendant belonged there, rather than charge first and ask questions later. Santa Clara prosecutor Arriola questions whether a change in the law will do any good. “Does society end up in 10 years getting frustrated that kids only served two years at camp?” (“Camp” refers to a common treatment for offending youths, a ranch-type setting where teens participate in work programs.) Rosen’s office has not taken a position on the measure, although Arriola says it’s hard to support any bill they weren’t involved with writing themselves.
For now, camp isn’t an option for Christian—he’ll be spending at least the next two years in juvenile lockup, and possibly moving to a high-security adult prison after he turns 18. Now in juvenile hall while he awaits his final sentencing, he has managed to read Gregory Boyle’s Tattoos on the Heart, which he says has inspired him to turn his life around. If introspection and desire to change are indicative, maybe Christian can be redeemed after all.
This article was reported with the support of the Investigative Fund at the Nation Institute.