Compassion in Juvenile Sentencing

All my grown life I have been a passionate advocate for and educator about Human Rights for all human beings. Because of that I respect and understand the questions being raised by some advocates regarding the LWOP sentence for juvenile offenders. We believe a thorough public discussion on this topic could be a positive thing, but only so long as the victims of those horrible crimes are fully notified of such debate, and empowered to participate if they so choose.

I am one of those victims - three members of my family were killed by a 16 year old later diagnosed as sociopath. He meticulously plotted and carried out their murders over a period of months. He shot my brother in law, a very good man he did not know and picked at random, and then he turned the gun on my beautiful 25 year old pregnant sister who was begging for the life of her unborn child. He shot her directly in her abdomen where she was trying to protect the baby. He did it for the “thrill” of it, and he planned to kill again months after he did it. He was mature, intelligent, from a good and wealthy family, was a top student, and to this day is unrepentant and still enjoying his mind games with those foolish enough to fall for him. He fits no stereotype of the cases that advocates against JLWOP are concerned about. He is the poster child for those rare few cases where LWOP is actually the appropriate sentence for an offender under 18. He is currently serving three LWOP sentences in the Illinois Department of Corrections. My concerns about the discussion about this sentence are not, however, changed by the facts of my case. They are the concerns I have for all of my fellow murder victims’ family members.

The primary purpose of the LWOP sentence, no matter the age of the offender, is to protect public safety. It also is the best sentence for victims in terms of the least amount of on-going traumatization caused by constant parole hearings. Other states that still have indeterminate sentencing, unlike my state of Illinois, hold regular hearings for parole that re-open the victims’ scars constantly, causing a lifetime of never-ending engagement with the offender.

When a reasonable determination can be made that the offender would never be judged releasable then the human rights of the victims to not have to face re-engagement with the killer regularly for the rest of their lives should take precedence over the “rights” of the offender. Then and only then, in those rare cases, is the sentence appropriate.

It is hard for those of us who care about human rights to have to admit that sometimes human rights of one person can be in direct conflict with the human rights of another. This requires a very nuanced and sophisticated understanding of human rights, but it is, sadly, sometimes real.

When those rights are in conflict, the innocent victims needs should be the ultimate consideration.

Someday perhaps we will become a society where all people in it are able to live with fully actualized freedoms and not be at all in conflict with each other. I think however most intelligent people know we are not there yet.

Also, the LWOP sentence supports a much more important human rights agenda, that we provide a viable alternative to becoming killers ourselves through the use of the death penalty. It is a reality-based observation that some are so dangerous and have done such awful things that they must be kept forever away from the rest of us, even from a young age, but I stress again, only in the rarest and most extreme cases.

As I have learned more about the approximately 103 cases of JLWOP in the Illinois Department of Corrections, it has become clear to me that there are definitely one or two of these offenders who should not have received this sentence, but because of some mandatory sentencing laws, judges had no choice. There is definitely room for work on this problem.

As I work hard to advocate for victims in the now raging legislative discussion on this issue in Illinois, I am reminded that those here that proposed a bill that would eliminate JLWOP, deliberately chose to leave victims out of the most important discussion that they could ever have - what should be the fate of the offender who brought untold agony into their lives? And oh, by the way, you know how the state of Illinois promised you that the killer would never walk free, and all your legal matters that were “permanently resolved” and in many cases discarded from your lives? They didn’t really mean it. Now you will have to start dealing with it again every day for the rest of your lives. A life sentence for you, the victim.

We have discussed this on my IllinoisVictims.org website - the entire field of victimology affirms it — that victims have a tragic and absolutely indissoluble relationship with the fate of the offender. This is a relationship created by the offender, about which the victims have no choice. This, perhaps better than any other definition, defines what it means to be a victim.

The original supporters of a bill to end JLWOP in Illinois only began to speak of the importance of representing victims voices in this discussion after my sister and I found out about their bill on our own and insisted that they do the right thing. They saw us frequently in anti-death penalty work, and deliberately chose what they later called “an under the radar strategy” with their legislation.

They lost credibility on any advocacy for Restorative Justice.

Restorative Justice is ALL about the victims and their healing. Bringing them to the table.

As of now, these advocates in Illinois have only paid lip service to their concerns for victims - with no action steps or follow though. Many of these advocates have yet to earn their real human rights credentials. When they begin to care for the victims of these crimes as much as they do the “poor criminals”, they will have earned the right to be at the table in this discussion.

I have paid the dues to be at the table in this discussion but they have not. They were simply lazy - they did not want to take the time necessary to do the hard work of the more difficult dialog that talking to victims would require.

I took action at the national level on this problem and began a conversation with staff at Human Rights Watch, one of the leading organizations nationally trying to end JLWOP. To their credit, they immediately agreed with my challenge regarding their neglect of victims in their campaign. At my personal suggestion, they authorized, researched, and soon will be publishing a report that I suggested the title to - “Victims Rights Are Human Rights” - at least a step in the right direction. (And a proud accomplishment for us in both victims and human rights advocacy - this publication will be a first for our movement.)

We encourage all advocates opposing JLWOP in Illinois to practice what they preach with regards to Human Rights.

We know that even discussions about the sentences of brutal offenders who caused untold trauma to a victims’ family will, in and of itself, be re-traumatizing. Those advocates who propose changing the status quo and retroactively changing sentences already given due process of law are responsible to find and notify the victims of such crimes to be informed about any proposed changes before they happen. Victims families who have gone on in their lives with the understanding that the sentence is permanent and the offender can never be released cannot be given a “bait and switch” without their full informed consent.

It is not only unconstitutional, it is morally abysmal.

Those who wish to propose changes to a sentence retroactively are also ethically obligated to generate appropriate emotional support and counseling for the very foreseeable emotional consequences such discussions could have on victims’ families.

We do not believe that advocates who claim to be concerned only about human rights are being ethically consistent if they are willing to make changes to sentencing law that deeply hurts victims families in the process. You cannot protect the human rights of one group selectively while at the same time hurting another innocent group of people. This is the challenge that we put to that part of the human rights movement, that we have long been a part of, that seem to be so focused on seeing prisoners, not victims, as underdogs and in most need of help. The measure of their success and credibility will not be in how much they help prisoners’ human rights, but how they protect prisoners’ human rights while at the same time preserving the rights, dignity and well-being of the innocent victims of those criminals.

Until the public determines after full discussion that JLWOP should no longer be a sentencing option, advocates should only work to make changes going forward “prospectively” - for all cases from here on. Such a change would not be a violation of victims’ rights, because they would know what to expect from the outset in all cases from here on.

But any retroactive changes to sentencing have to be treated completely differently because of the essential legal foundation of due process rights as well as the emotional and psychological process of the victims families and all the people involved in the prosecution of the cases.

We have been trying to point out, loud and clear, that a remedy already exists in law to address miscarriages of justice. Rather than battle a whole new bill through the state legislature, why not use the system already in place? That system is Clemency. The Constitution prescribes that the checks and balances between the branches of government can correct themselves for error. If there has been an over-sentencing, then clemency can be used to correct those cases retroactively that need correcting.

We find the proposals to change the sentencing for ALL of the JLWOP offenders somewhat disingenuous, not only because of their deliberate refusal after many requests to find and include the victims families in their years of work, but because not a single one - not even one - of the 103 or so Juvenile Lifers in Illinois have applied for clemency.

They have not even tried to apply.

And worst of all, one organization, the John Howard Association, the primary group in Illinois pushing for this legislation (in defiance of a larger coalition they were partners in that were moving responsibly in a “go slow” process, willing to collaborate with victims families), has admitted openly to us that their primary motivation in pushing this legislation was to position themselves for funding opportunities. Some foundations have been giving out money to organizations who will work against JLWOP.

If these 103 or so cases need to be reviewed, a process that would be horrific for victims families, then it should be limited to a one-time only review — in courts of law that are subject to the full accountability and due process of our legal system. But this only if all victims families are found, notified, and empowered to participate in the decision to do so. To propose anything more is asking victims to bear the full pain of the worst trauma of their lives over and over again. And would be a fundamental violation of their human, constitutional, legal, and victims rights.

What we object to vehemently is proposals that do not inform victims families of proposed changes before they push them, and take no account to the effect that such changes would have on them. I personally spent months of tears, sleeplessness, and genuine horror for the first time since my sister was killed. I was scared - for the first time in years - of the very thought that this very dangerous man could possibly walk free. I experienced genuine re-traumatization. Other victims families will go through the same or worse.

And even more serious are concerns that some proposals would require victims families to go through regular parole-review type processes every few years for the rest of their lives, making impossible any life that allows them to heal and move on from the horrific crimes that forever changed their lives. These kinds of proposals are absolutely unacceptable. They would truly cause more harm than good. There are lots of different ways to address concerns with sentences such as these without recreating the nightmarishly racist, random, expensive and ineffective bureaucracy of parole that was quite rightly done away with in Illinois in 1978.

The Hippocratic Oath for doctors is a good standard to follow: First, do no harm.

We have begged on several occasions, in person, in writing, and in organizational meetings, that all advocates against JLWOP in Illinois take just a small percentage of the significant resources that they have and have invested into documenting the cases of the 103 juveniles lifers and send a simple letter to the victims families informing them of their study, their legislative goals, and invite them into this process. They have refused this request.

Their refusal to deal honestly, fairly, and compassionately with victim families is beyond our understanding and is costly to them in terms of credibility.

Victims families may definitely not want to participate, and can refuse absolutely to participate in any such conversations. But it is their right to make that choice themselves. That right is absolutely ensconced in the Constitution of our state.

And it is unconscionable that people who have the ability to care for those in prison, as I do, would not have enough concern for the victims of these same crimes to even tell them what they are planning. I would like to ask those advocates for Juvenile Lifers to give as much time to victims as I have to prisoners over the years. That would be a good standard for them to work for.

We do believe that JLWOP is appropriate in some few extreme cases. We believe that it is currently over-used, and should be applied only in the most serious of cases. But we know that there are some offenders so dangerous, so unrepentant and unchanging, such as truly violent sociopaths, that the LWOP sentence is the only appropriate sentence for them, especially when considering the most important factor of public safety, and the need to absolutely not submit brutalized victims families to one more moment of trauma.

We believe in the ability of human beings to make sound judgments about which of those cases do need to receive the LWOP sentence. We do not believe that something as arbitrary as an 18th birthday should be the determination point for such decisions. We know that human development varies widely, and some people are fully developed and mature enough to be held accountable at different ages, depending on the person and the individual circumstances of each case. And from what we know of the 103 or so cases of JLWOP in Illinois, there are many for whom the brutality, and often repeated and multiple instances of horrific violence, is so dramatic, and their personal maturity adequate to provide for adult levels of culpability, that we have no doubt that almost everyone would concur that their sentences were quite appropriate.

There is an almost impossible to solve legal concern here for those who would contemplate retroactively changing some sentences. If a case is decades old, records are gone, witnesses and court officials long gone, and no viable hope of the Constitutional Right of Due Process being made available to all those involved in a given case, that it will not be possible to fairly re-try or re-sentence a case. Clemency is an option that the system provides that would allow un-doing of grievous miscarriages of justice.

A significant study was just completed and the Illinois public was still not given the hard look at the facts of some of the JLWOP cases in Illinois. The report was bad news for the researchers - they found not lots of cases of innocence, legal error, abuse, poor representation, etc., that they were predicting they would find. Instead they found that they were all pretty much guilty mass murderers with virtually nothing to make them sympathetic. These killers are serving the appropriate sentence in many cases, and other cases may be appropriate for clemency. Some of the facts of these cases are so brutal that it defies description, but at least one of them is a clear candidate for executive clemency. I have been working positively and pro-actively with these advocates to work towards these changes. And I will stand with them before the Governor and support the appeals for clemency in some of these cases.

A single crime cannot be adequately diagnostic for determination of LWOP. And the law should not allow it to be so. But if we are not willing to give the LWOP sentence to those who clearly need and deserve it, then they will go on in prison or after release to re-victimize even more innocent people. Such tragic stories abound in the news. We are responsible to use our best judgment to prevent this.

So, I will work to defeat all changes to current JLWOP law until and unless all affected victims families are found and informed and invited to be part of any discussion about possible changes to the law. This is not an extraordinary request - there are only a few hundred people involved here. This task is a finite one — definitely “do-able”. Once they have all been found and informed, a meaningful discussion can begin.

We call on the advocates that have been funding and staffing the study of the 103 or so cases to take the list of names of the victims families that they already have and contact them all. Provide them with appropriate support. Empower their voices in this discussion. We promise to work to help them do this.

For all the advocates opposing juvenile life sentences to refuse this request renders your motivations and your efforts not credible, even unthinkably cruel and heartless towards innocent and deeply wounded victims of crime. That anyone could care for protecting the interests of guilty violent offenders and not those of their innocent victims . . .well, words just fail me on this point.

When these advocates have found these families, informed them, supported their inevitable re-traumatization, and empowered their voices in this process they have created, then they will have earned their credentials as human rights advocates in this situation and can stand with pride before the Illinois Legislature and Public and can propose the changes they think should happen. And we all will discuss it and decide - together.