By Douglas Kalajian, Staff Writer
June 4, 2000

The choice is stark: Life in an adult prison with no chance of parole, or three years in a juvenile lock-up with no criminal record afterward. Florida’s increasingly rigid teen-crime laws leave little middle ground for punishing — much less trying to rehabilitate — a 13-year-old accused of first-degree murder.

State Attorney Barry Krischer made the choice swiftly in the case of Nathaniel Brazill, the Lake Worth Middle School student charged in the fatal shooting of teacher Barry Grunow on the last day of school.

Krischer will ask a grand jury this month to indict Brazill as an adult. He will not consider a lesser charge, second-degree murder or manslaughter, that would carry a lesser sentence.

The decision landed Krischer in the televised spotlight of national new shows featuring defense attorneys and others who suggested he was pandering to a shocked community’s worst instincts. Krischer has answered unflinchingly.

“Murder is an adult crime, just being committed by someone in a 13-year-old body,” he told CNN.

The arguments continue to echo in elevators, grocery-store aisles and letters columns. Law and logic have sometimes suffered in translation under high emotion. Calls for the death penalty, for example, ignore the U.S. Supreme Court’s ban on executing anyone under 16. But the debate underscores the state’s leading role in changing the very nature of the juvenile justice system.

Once intended to rescue wayward kids, the system has shifted dramatically in the past decade toward adult-style penalties. Florida is one of the most aggressive states in bypassing the juvenile courts altogether and prosecuting children as adults.

It leads the nation in locking up nearly 800 of the more than 5,500 teens sentenced to adult prisons each year — twice as many as California.

“Rehabilitation is secondary,” says Palm Beach County State Attorney’s Office spokesman Mike Edmondson of the Brazill case. “That is the policy of the state of Florida.”

That policy, however, is sharply questioned by some legal experts, youth advocates and academics who see it as having a minimal effect on crime but a devastating effect on teens who are more foolish than mean-spirited.

They note that fewer than a third of Florida teens convicted as adults go to prison, lessening any deterrent effect. They also cite studies suggesting that teens who remain in the juvenile system are less likely to commit further crimes.

“Almost every kid is redeemable,” says Frank Orlando, a former Broward County juvenile judge who is now director of the Center for Youth Policy at Nova University. “We know how to do a lot for them. We know what programs work. But we’re chasing a myth about getting tough.”

Krischer consistent

Krischer’s office rejects those arguments, at least in cases of violence and many other serious crimes.

“His opinion is that the penalties available in juvenile court are not meaningful at this level of offense,” Edmondson says. In the Brazill case, “juvenile sanctions would not be just for the murder of Mr. Grunow.”

Krischer has been consistent in applying his view since Florida’s Juvenile Justice Reform Act of 1994 gave local prosecutors discretion to file adult charges against teens without the consent of a judge, Edmondson says.

The law required state attorneys in each district to create and follow guidelines. Krischer’s guidelines for adult prosecution include drug dealing, residential burglary and three prior felonies, as well as charges of violence.

“They’re all automatically referred to adult court,” says Edmondson. “I certainly can’t think of a case involving a death that hasn’t been.”

Not all prosecutors around the state follow the same guidelines. Of 111 juveniles accused of murder or manslaughter from mid-1998 to mid-1999, 70 were referred to adult courts, according to the state Department of Juvenile Justice. The rest were kept in the juvenile system.

Just one Palm Beach County murder defendant charged during Krischer’s seven-year tenure was as young as Brazill.

Stephanie Powell was 13 when she and two companions were charged in the shooting death of cab driver Yves Quettant in 1994. She was then the county’s youngest-ever murder defendant. She was indicted as an adult and pleaded guilty to second-degree murder. She was sentenced to 21 years in prison.

Brazill would be the youngest Palm Beach County defendant sentenced to life. Tronneal Magnum was 15 in 1998 when he was sentenced to life in prison for the fatal shooting of a 14-year-old classmate at Conniston Middle School. Magnum was not only the youngest but also the first teen sentenced to life from this county since Florida eliminated parole in first-degree murder cases in 1996.

Indictment necessary

Krischer took the Brazill case to a grand jury, rather than filing charges directly, because of Brazill’s age and the seriousness of the charge. Because Brazill is under 14, he cannot be tried for first-degree murder without an indictment.

To prove first-degree murder, the prosecution must show that crime was premeditated. Lake Worth police, who continue to investigate the May 26 school shooting, say Brazill made his intent to kill clear: He told two classmates that he was going to get a gun and shoot the guidance counselor who sent him home for throwing water balloons. But when he returned to school, he encountered and shot Grunow, police say.

If Brazill were tried as a juvenile, neither degree nor intent would matter as much. Under Florida law, teens found to have committed any offense are designated delinquent.

Consequences vary, but the maximum for the most violent teens, including killers, is confinement to a Level 10 residential facility for up to 36 months. After release, they can be kept under state supervision on the equivalent of parole until they’re 21.

“Juveniles aren’t really given a determinate sentence so much as a level,” says Diane Hirth, spokesman for the Florida Department of Juvenile Justice. “Level 10 is designed to be an 18- to 36-month program, but we could keep them longer. Right now, the average length is 19 months.”

Another product of the 1994 reforms, the Level 10s were intended to give the most hardened teen criminals a bitter taste of what might lie ahead if they continue to break the law. The routine is severe: Up at 5 a.m., school six days a week and plenty of floor-and-toilet scrubbing. No CD players, no TV.

While three years may seem short to an adult, it may loom much greater in a teen’s life.

“A 25-year-old may look at a three-year sentence and think, `That’s nothing,’ but to a 13-year-old, it may seem like 20 years,” says former judge Orlando.

A century of debate

The struggle to interpret adult proscriptions in adolescent terms has been going on since Illinois created the nation’s first juvenile court in 1899.

“People think it was started by a bunch of social workers who wanted to help kids,” Orlando says. “But the impetus came from prosecutors who were having trouble getting convictions. Juries didn’t want to send little kids to prison.”

Juvenile courts spread to all states by the 1920s and evolved independently of adult courts. They were generally less formal in examining evidence and more creative in sentencing.

“Juvenile court judges were kings,” says Jeffrey Butts, a senior research associate at the Urban Institute, a nonpartisan Washington think tank. “They didn’t have to have proof that a kid committed a crime. They could do whatever they thought was best for the community, for the child, for the family.”

The first major blow to juvenile court independence came in the 1960s, when the U.S. Supreme Court overturned the sentence of an Arizona teen who was locked up for three years because he made a prank phone call. After that, juvenile courts began to adopt more adult-court conventions: More concern for the rights of the accused, a heavier burden of proof for prosecutors.

Although the high court’s instinct was liberal, the long-term effect wasn’t necessarily so.

A less-independent juvenile court system has become more vulnerable to political intrusion, Butts says. The two systems have moved closer, although the juvenile courts maintain important distinctions.

“There is still a remnant of the border that somewhat protects the juvenile system from the more intense politics of the adult system: Mandatory sentencing, three strikes you’re out, abolishing parole,” Butts says. “All the things that make no sense but are very good in campaign speeches.”

Going around juvenile courts

That did not prevent Florida and other states from finding ways to circumvent juvenile courts in response to public outcry over rising crime in the early 1980s.

Florida first gave prosecutors the option of asking for a waiver hearing to shift cases into adult court in 1981. The number rose quickly, to nearly one in 10 cases by the end of the 1980s. The percentage dropped but then rose again after 1994 when prosecutors were allowed to make the decision without a hearing.

At least 14 states followed Florida’s lead in giving prosecutors that option. None has used it as often.

Now, more than 6,000 of Florida’s nearly 95,000 juvenile cases each year are directly filed by prosecutors in adult court, nearly matching the number of cases sent to adult courts by judges in all other states combined.

That may be misleading, Butts says, because other states have adult-trial options that are less easily tracked. But Florida is certainly among the leaders, and its waiver system is increasingly considered a model for other states.

A recent report by the Center on Juvenile and Criminal Justice, a national nonprofit group that advocates alternatives to prison, raised questions about the effects of Florida’s system. The report relied on several studies conducted by different researchers.

One found that less than a third of Florida teens charged as adults were accused of violent crimes, although combating violence was the law’s original intent.

The same team found that only one in three teens found guilty in adult court actually went to prison and that many received terms under three years.

Another study cited in the Center on Juvenile and Criminal Justice report found that blacks were more than twice as likely as whites to be charged as adults.

The report also notes a six-year study by several researchers, including a University of Florida professor, who tracked teens tried as adults as well as teens who were kept in the juvenile courts. The study found that the teens tried as adults were three times more likely to commit further crimes.

While that study is often cited as proof that adult court is a poor alternative, the Urban Institute’s Butts says prosecutors see it as proof that they’re on the right track: “They’ll tell you: `Of course these kids commit more crimes. They’re hardened criminals. That’s why we sent them to adult court in the first place.’ “

Butts, who has reviewed all of these studies as well as others from across the country, cautions that results should be filtered for ideology and politics before making judgments about how well the system deals with young criminals.

“A lot of the answers depend on your presumptions about justice, fairness and public safety,” he says.

Klein: Judges need latitude

While Florida’s get-tough policies also garner considerable publicity, former judge Orlando has visited several states recently that are trying different approaches. In New Mexico, for example, judges have more freedom to blend juvenile and adult sentences.

There, Nathaniel Brazill would also be tried as an adult. But if he were convicted, the trial would enter a second phase.

“The judge would then consider a lot of factors — evidence, history, background — before deciding whether the youth should be punished as an adult or if it’s best to keep him in the juvenile system,” Orlando says.

State Sen. Ron Klein, a Boca Raton Democrat, says Florida judges should have similar latitude in cases of teen murder and some other violent crimes.

He said he will go to Tallahassee on Monday to begin work on a bill that, among other provisions, would allow judges to try such teens as adults but place them in juvenile programs at least for a time.

The sentence could be open-ended, giving prison officials and the sentencing judge supervision until the teen is well into adulthood, with the option of adult jail time if the juvenile program shows no signs of successful rehabilitation.

“They could go into the adult population for two years, or 50,” he says. “It would depend on the circumstances.”

Klein said he does not oppose tough sentencing for violent teens, but the either-or choice in the Brazill case troubles him. His bill would not affect Brazill.

“There are some cases where maybe we should lock them up and throw away the key,” Klein says. “But maybe in some cases there should be a middle ground.”

Orlando, who sentenced hundreds of young offenders in 11 years as a juvenile judge, says the choice between a juvenile facility and adult prison is a decision best made after considering more than the severity of the crime.

“There are kids who are big and strong at 17 who are probably mature enough to go to prison,” he says. “You throw a 13-year-old into adult prison, and he’s in danger. The people who work there have to work three times as hard watching him. Most judges don’t want to put a person into a place where they’re almost sure he’s going to be killed or sexually assaulted.”

Could begin at juvenile facility

If Brazill is convicted of first-degree murder, he will be beyond the reach of the state’s juvenile authorities. But he might be able to serve the first part of any sentence in a juvenile facility if the judge, the Department of Correction and the Department of Juvenile Justice all agree, a juvenile department spokesman said.

For now, Brazill remains in the county’s juvenile detention center, waiting for the grand jury’s decision.

His lawyer, Assistant Public Defender Randy Berman, will be allowed to present evidence when the grand jury convenes in private June 12.

He says police accounts of his client’s actions don’t square with what Brazill told him. He won’t discuss their conversations but says they provide no clue to the mystery of why a good student who has never been in serious trouble would commit such a violent act. He may argue that the gun went off accidentally.

“The first thing you think is, this is crazy — and maybe it is,” Berman says. “I’m not ruling out that there is a mental health issue.”

The answer may come from a series of psychological tests administered to Brazill last week. Otherwise, Berman will try to persuade the grand jury — failing that, a trial jury — to consider lesser charges: Second-degree murder or manslaughter. He may try to persuade Krischer to accept a plea to such a charge.

“That would allow the judge discretion in sentencing,” Berman says. “He could impose a sanction that he felt was just. That could include a sentence at a youth offender prison. Or, some term in an adult prison of a lesser length.”

Berman concedes that the prospect of failure is daunting.

“It’s unfortunate that there may be no intermediate step here — a sentence of 10 or 20 or even 30 years — that would allow this child to have some kind of life afterward,” he says. “He’s smart, but he’s not truly mature. He’s a baby, really. What’s just for a little boy?”

_____________________________________________
Copyright © 2000, Palm Beach Post