According to a recent Denver Post article, Gov. Bill Ritter is set to appoint several judges to the bench, including a vacancy created by Supreme Court Judge Mary Mullarkey’s recent decision to step down. StopDirectFile.org has to ask, “what’s the point?” What’s the point when the judges you’re appointing aren’t really allowed the full scope of decision-making power that Coloradans believe they ought to have? What’s the point when a prosecutor can make an extra-judicial decision that no judge can overturn?
The power to direct file charges against a child isn’t just procedural authority, it is judicial authority. In effect, when a prosecutor chooses to file adult charges against a child, he or she is choosing a sentencing range for that child and pronouncing their judgment on that child in open court. Legal precedent in Colorado is clear. According to Colorado Revised Statutes,”the authoritative expression of legal conclusions in declaring the sentence of the law…and the pronouncing of judgment in open court in the presence of those affected thereby, so as to bind and control persons and property” are judicial functions that “cannot be lawfully exercised, except by those entrusted therewith by the people under the constitution.” De Votie v. McGerr, 14 Colo. 577, 23 P. 980 (1890).
Most states preserve separation of powers in filing adult charges by holding what is called a ‘transfer hearing.’ During a transfer hearing, from juvenile to adult court, a prosecutor presents his or her evidence against an accused child. A defense attorney then has the opportunity to cross examine that evidence before a judge. Based on the presentation and cross examination of evidence, the judge then determines the appropriate venue for trying a child. But NOT in Colorado. In Colorado we presume a child’s guilt just enough to make sure that they face consequences as an adult. In Colorado we make sure that a prosecutor’s decision to file adult charges is not subject to judicial review. That’s wrong and Gov. Ritter’s appointments, as a result, have no real meaning.