According to a new article by Joe Boven at the Colorado Independent, Colorado’s kids of color are disproportionately represented in adult courts as a result of direct file. Boven points out that data is scarce, but “between 1 January 2008 and 31 December 2009 there were 273 children tried in adult courts [and] of those children, 73 were black, 34 Hispanic, 2 Indian and 153 white.”

In total that is only 109 children of color versus 153 white children. On the surface that might not seem so bad, but Boven points out that “those numbers don’t match up with the Colorado population.” Independent research projects by both the Colorado Independent and Colorado Defense Bar show that when compared against Colorado’s population, kids of color are dramatically over-represented in adult court.

Boven writes that:

“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.”

One surprising finding: “The relatively low percentage of Latino youth suspects landing in adult court.” But Boven is nonplussed and adds, even more surprisingly, that:

“Although the relatively low percentage of Latino youth suspects landing in adult court seems encouraging, [Sandy] Mullins [of the Colorado Defense Bar] said that in El Paso, Arapahoe, Weld, and Douglas counties at least, Latinos seem to be identifying themselves as white.”

So what could explain all of this? Ted Tow of the Colorado District Attorney’s Council offers his thoughts:

“There can be no debate that there is minority over-representation [in direct file]. 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. We don’t track it either. I’m not saying we have that data but it is a neglected feature. Race is not a factor that we consider when making those decisions. 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. 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.”

According to Boven, Mullins generally agrees that  it is  impossible to guess at the motivations that shape the direct file system with regard to race. Mullins says, “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.”

In short, over-representation of children of color in the adult court system is a truly systemic problem. Everyone seems to agree that it is a problem that requires address and redress. To start, the state needs better data collection practices. But that only serves to further define the problem.  At StopDirectFile.org we prefer to focus on solutions.

No one is suggesting that DAs are intentionally racist. They have a duty to enforce the law. Direct File was intended to give DAs the authority to effectively prosecute “gang crimes.” But “gang crimes” are in the eye of the beholder. What appears to be a “gang crime” according to one DA might be “a couple of kids who got into trouble together” according to another. It is no surprise that teenagers tend to congregate in groups (for better or for worse).

That “gang involvement is greater in minority communities than in white communities” is an enormous assumption (Ted Tow from above) based on a highly subjective interpretation of “gang crime.” It could be, for instance, that Colorado is policing communities of color more heavily based on that assumption and those subjective interpretations.

What is needed are solid data, judicial discretion and impartiality; people who are paid to separate the wheat from the chaff.  Yes, judges who will second guess enforcement decisions that may have been racially biased. DAs (a la Don Quick) are the first to admit that their decisions aren’t perfect. Our country was intended to be a system of checks and balances. Recognizing that they aren’t perfect, isn’t it time that DAs gave some decision-making authority back to the judiciary? Might that be a better way to “pursue justice” than making a series of unfounded assumptions that have dire consequences for children of color?