Compassion in Juvenile Sentencing

Making strides toward more compassionate juvenile sentencing in Colorado will be a long road. Senate Bill 08-066, authored by Colorado State Senator Suzanne Williams and sponsored by Representative Rosemary Marshall is intended to address the felony murder statute in juvenile cases.

The bill summary is as follows and can be read in its entirety here:

Reduces first degree murder to a class 2 felony if the defendant

was under 18 years of age at the time of the offense, was convicted as an

adult, and did not commit or assist in committing the homicidal act.

Makes a defendant convicted of class 2 felony first degree murder eligible

for sentencing to the youthful offender system.

According to the Colorado Senate News, the vote on this bill has been delayed, pending revisions to the bill. Apparently discussion on this got quite heated. My interpretation of this article leads me to believe that staunch opposition to reducing any punitive power with regard to juveniles has led to an unproductive unwillingness to rationally discuss the specifics of the bill. The examples of felony murders that the Denver District Attorney cited are extreme and from the little I currently know about juvenile felony murder convictions are not representative of most cases:

“Morrissey recounted a litany of cases in which heinous crimes were committed, and felony-murder charges were used to bring justice. In one such case, he said, a woman who had been kidnapped and severely injured was left outside and died of exposure. Technically, Morrissey said, no one committed the final act killing the woman, yet a jury found that, clearly, all the kidnappers’ actions led to her death.”

This bill is incredibly significant. According to the Free Online Law Dictionary, felony murder is:

“a rule of criminal statutes that any death which occurs during the commission of a felony is first degree murder, and all participants in that felony or attempted felony can be charged with and found guilty of murder. A typical example is a robbery involving more than one criminal, in which one of them shoots, beats to death or runs over a store clerk, killing the clerk. Even if the death were accidental, all of the participants can be found guilty of felony murder, including those who did no harm, had no gun, and/or did not intend to hurt anyone. In a bizarre situation, if one of the hold-up men or women is killed, his fellow robbers can be charged with murder.”

Until the law was changed in 2006, a felony murder conviction warranted a mandatory sentence of Life Without the Possibility of Parole (LWOP). Today, a felony murder conviction in Colorado has a mandatory minimum sentence of forty years before the possibility of parole.

I tried to run down some statistics on how many of the approximately 45 juveniles currently serving LWOP (the change in the 2006 law was not made retroactive and therefore their life sentences still stand) had been convicted under the felony murder statute, but data is difficult to come by. I will keep working on it. I have heard that up to 60% of juveniles convicted of murder have been convicted under this statute, but I have no source for that figure.

Erik Jensen is one of the juveniles convicted of felony murder, who is currently serving LWOP. You can see full details of his story at the Frontline free online documentary “When Kids Get Life”. Trevor Jones is another. Please take a look at this cases and ask yourself if these two teenagers should die in adult prison. This bill can’t help them, but it might help kids like them.

Erik, Trevor and an unknown number of other juveniles exercised bad judgment and were somehow present, but did not participate in a crime in which the death of an innocent person resulted. Some of them are serving LWOP. Those who are convicted today will serve a minimum of forty years in prison.

Why do the District Attorneys feel that allowing some juveniles convicted of felony murder – which means they did not actually commit or participate in the commission of a murder – to be sentenced through the youthful offender system, rather than in the adult prison system “is a bad bill that gives teens the message they can be a party to murder or other heinous crimes without facing the most serious consequences”?

Really? Will it send that message? Or will it allow children who have made bad decisions and found themselves in the wrong place at the wrong time an opportunity at rehabilitation and redemption?

Under the current statute, a judge’s hands are tied. The District Attorneys in Colorado already have complete discretion to direct file children as young as the age of fourteen into the adult court system. If these same children are convicted of felony murder, they are automatically sentenced to a minimum of forty years in adult prison, where they are five times more likely than their adult counterparts to commit suicide or be victimized by sexual predators.

The offenders are still punished. The bill proposes to sentence a juvenile convicted of felony murder, under specific criteria to a minimum of two years and a maximum of seven years in the youthful offender system with additional community service. That’s not a slap on the hand.

I urge you to contact Governor Ritter to voice your support for this bill. This hyperlink takes you to an automated form, where you can easily express your support for Senate Bill 08-066.

Let’s not continue to throw our children away.

When I decided to start this blog, I told myself that the best thing I could do to participate in the dialogue about juvenile cases and juvenile sentencing would be to learn about the law, about the impending changes and about the cases, but I wanted to keep a distance from those who’d been convicted of the crimes. I thought that getting to know the human beings behind the newspaper articles and the case files and the sentences would be too difficult on an emotional level.

I’ve found that separating this issue from the people is not as easy as I thought it would be. The Frontline special, “When Kids Get Life” put five real faces and voices on Jacob Ind, Nathan Ybanez, Erik Jensen, Trevor Jones and Andy Medina. I read Mary Ellen Johnson’s book, “The Murder of Jacob” to learn more about his story. I’ve written and received two letters from Jacob, each exchange bringing me to a deeper understanding of who he is today and what his life is like. The Rolling Stone article about Nate Ybanez provided a far more detailed history of his story. I learned about Cheryl Armstrong on The Pendulum Foundation site and subsequently spoke with her mother.

Today I received a letter from Cheryl Armstrong and she has become very real to me. I will talk more about this in a future post.

When I began writing this blog, I had assumptions about how the judicial system worked, but I never understood how gray so much of what happens is. The cases that caught my attention are all high profile, highly publicized cases because of the age of the offenders and because of the nature of the crimes.

I’ve learned that the justice system and the laws that govern it can be profoundly impacted by politics, perceived public opionion and of course by the media.

I’ve learned that most of those who’ve been locked away as children have been largely forgotten. The lucky ones have one or two people who stand behind them and support them. The unlucky ones have been forgotten by even their families.

This brings me to the Colorado Governor’s Juvenile Clemency Board. It was widely publicized when in August of 2007, Governor Ritter established the Juvenile Clemency Board. It’s difficult for someone like me, without a background in politics or the law to piece together how these things work, but I’ve learned that each state governor establishes his or her own approach to clemency. Each new governor creates his or her own criteria, and each offender who is eligible may apply for clemency, which can result in a number of possible outcomes.

The new application and the criteria to apply to the Juvenile Clemency Board are available for download here.

If a prisoner is granted clemency, it may result in a pardon and immediate release. This is very rare. What is more likely is that a prisoner may be granted commutation of a long sentence, which may or may not result in release or conditional release.

This sounds good, but someone serving a life sentence may have his sentence commuted to forty years before possibility of parole. Forty years is better than life, but not much.

What are the chances that a clemency application might be approved? Nobody knows. Each board is newly formed and reinventing the wheel, so to speak. There are no precedents. There are lots of concerns about applying for clemency, especially about going first. Nobody wants to be a test case. Governor Ritter is a former Denver District Attorney. Is a prisoner who was convicted while Governor Ritter was the prosecutor less likely to be granted clemency than a prisoner who was tried by another DA? Jeanne Smith, a member of the clemency board is a former District Attorney for El Paso County. If she reviews a clemency application that she also happened to prosecute, would that have an impact on how that offender’s application for clemency is handled?

Offenders and their family members have to weigh many questions that have no clear answers. Is it better to wait to apply for clemency under a new governor if you were convicted by the current governor?

Is the risk of having a sentence commuted to a lower, but still excessive number of years too great to risk applying for clemency?

Most of the offenders are indigent and cannot afford to retain attorneys so these are decisions they’re left to work through on their own.

I was foolish enough to think I could become involved in this issue without allowing myself to care about these people who now are trying to determine how to approach an application for clemency. The sad thing is that I’m not qualified to help them. I don’t even know who can.

Victims and victims’ families have the opportunity to present information urging that the governor deny clemency during this process. Supporters of the offenders also have the opportunity to speak on their behalf.

I’ve scoured the internet and there is no paper or article that I can find that talks about the pros and cons and issues that an offender should consider prior to applying for clemency.

If you’ve got any thoughts or ideas about things the candidates for clemency should consider, please comment or email me.

This post has been written by my guest blogger, Mary Ellen Johnson, Executive Director of the Pendulum Foundation.

For the first time in Colorado history, the state has admitted that it wrongly incarcerated an innocent man. Tim Masters served nearly a decade behind bars for a murder he did not commit. On Sunday, January 20, 2008, while the front page of The Denver Post trumpeted Tim Masters forthcoming freedom, an inside opinion piece related the plight of Erik Jensen, a Colorado teen who is serving life without parole for helping his friend flee his abusive mother.

According to the article, “(Prosecutors) maintained that (Erik) conspired with Nathan to kill (Nathan’s mother) and then helped him carry out the crime. They charged him with murder based on a complicity theory.

As their proof, prosecutors offered the testimony of a third teen involved in the crime, Brett Baker. Under intense pressure from prosecutors, Brett testified in exchange for having several charges against him dropped. Even though Brett failed a lie detector test - which prosecutors required as part of the deal - they still put him on the stand. But jurors never heard about that.

… Based in large part on Brett’s testimony, jurors convicted Erik and sentenced him to die in prison.” (Colorado jurors can’t know the actual sentence. Much to the dismay of many jurors who find out after the fact that real life is nothing like television where the bad guys walk on a technicality or after serving a couple of years in a country club, jurors have no idea that conviction means mandatory life.)

How are the Tim Masters and Erik Jensen cases connected?

While Tim Masters was 25 when he was arrested, he was first interrogated at 15. Masters’ interrogation, portions of which are shown on a Denver Post video, are shocking. (Note: To view video, use drop down menu to the right of the video window to select “Sketchy Evidence” clip.)

A female police officer leans toward Masters and says, “I know you did it. I’m telling you. You did it.”The male investigator joins in, “We know that you did it, Tim.”The teen withstood seven hours of similar bullying. (While Tim never “confessed,” studies show many innocent teens — and adults — DO).

Which brings me to Erik Jensen. There are degrees of culpability. On the continuum of innocence, Tim Masters is 100% pure. In Erik’s case he admits to cleaning up after Nathan’s deed. Where does that put Erik on the scale of innocence: maybe 80%? 75%? For this admittedly foolish and even criminal act, a 17-year-old should be sentenced to die in prison?

Remember: with the admission of Tim Masters’ innocence, we’ve witnessed up close and personal the nasty underbelly of Colorado’s justice system — an underbelly that our juveniles serving life have been complaining about for years. In Erik’s case, the teen who fingered him failed a lie detector test. He was offered a deal. He escaped prosecution for other offenses by “rolling over” on Erik.

How can this be? What evidence, other than the word of a kid who wanted to keep himself out of jail, actually pointed to Erik’s involvement in killing Julie Ybanez?

Prisoners call such informants “snitches.” And, those of you on the outside who have never been involved in the system and who can’t conceive of ever being caught up in our criminal courts, need to know that many of those serving time behind bars are there on the basis of jail house snitches, as well as VERY questionable “evidence”.

Worst of all, the practice of using snitches is perfectly legal. Actually, America’s justice system would collapse without them. As would interrogation tactics similar–or even harsher–than those used on Tim Masters. While reading the transcripts of one of our young LWOPs, I noticed where an officer promised the kid, who’d been riding in the backseat of a car from which much older occupants participated in a fatal drive-by, that a confession would guarantee the kid YOS (A juvenile facility). Many years later the now grown man points to that ersatz promise as the reason he should get a new trial. I try to explain that lies are perfectly legal — so long as law enforcement does the lying.

“How come it’s okay for the officer to lie?” he asks plaintively.

When asked about this double standard, law enforcement responds that sometimes ya gotta do what ya gotta do in order to catch the bad guys. Really? When a child faces life without parole, I would think police and prosecutors would do everything in their power to arrest and convict the correct suspect. Bullying kids shouldn’t be part of the script. As we all know, kids will say anything. And, by law, kids who are charged as adults can’t have their parents in an interrogation room to protect them. Adults get tripped up all the time on this business of Miranda rights or other legal “technicalities” that could earn them a one-way ticket to the big house. And we say it’s okay to use those some tactics on 14-15-16 and 17-year olds?

Colorado has at least 4 kids serving life who swear they are innocent, that no real physical evidence ties them to the scene of the crime. I can’t speak to the truth of those claims. I DO know that we have juveniles sentenced to die in prison, whose state-provided investigators never actually visited the scene of the crime or interviewed potential defense witnesses. We have juveniles who may have met with their attorneys once before trial — and this is for a first-degree murder charge. We have juveniles who had two, three and four day trials where no defense witnesses were even called. Many young men and women convicted as juveniles complain of the shockingly inadequate quality of their defense. Even with their lives on the line, the state of Colorado gave them the appearance of a fair trial without the actual reality.

Colorado has been forced to admit that it made a “mistake” with Tim Masters. “That proves the system works”, assert some who make their living in the justice system.

I disagree.

Had it not been for the dogged efforts of Masters’ appeals attorneys and of a hard-hitting investigative reporter, Miles Moffeit, Tim would be just another annoying prisoner proclaiming his innocence to people who neither believe nor care. Furthermore, I contend there are other “mistakes” serving hard time. Look at the Tim Masters’ interrogation and ask yourself, what other 15-year-olds have been similarly bullied?

Read Erik Jensen’s story and ask yourself whether a 17-year-old should spend the rest of his life behind bars on the basis of a few suspect words supplied by a frightened fellow teen?

What other children sentenced to life without parole were denied justice? How many other Tim Masters will die forgotten in a concrete cage the size of a parking space?

And what are we going to do about all the Erik Jensens, who are struggling to maintain their humanity, as well as their hope, while the weeks, months and years slip past?

I hope that America’s collective “we” will finally decide that it’s time to move past retribution and toward redemption.

Mary Ellen Johnson

Executive Director, Pendulum Foundation

(720)-314-1402

MaryEllen@pendulumfoundation.com

The Pendulum Foundation

5082 E. Hampden Ave, Suite 192

Denver, CO 80222

The Denver Post published a piece by Jessica Peck Corry yesterday called A Teen’s Crime, A Lifetime to Pay, and I was fascinated by the comments. Erik Jensen is one of an estimated 60 percent of the juveniles sentenced to life without parole in Colorado since 1998 who are there because of a felony murder conviction. The felony murder rule makes any participant in a felony criminally responsible for deaths that occur during the commission of the underlying crime. Erik participated in covering up the commission of the murder of Nathan Ybanez’s mother, but did not participate in her murder. 

Felony murder, at the time of Erik’s crime meant an automatic sentenced of Life Without the Possibility of Parole, or LWOP. Although the state overturned the mandatory LWOP sentence in 2006, the change was not made retroactive to include the 48 people who were already serving the sentence.

I hope that this site and this post might attract those with an understanding of sentencing law, because I am unable to understand how a sentence that was determined to be inappropriate, could be held up for those already serving it.

Please comment if you have thoughts on this.

On November 21^st I watched an episode of Frontline, called When Kids Get Life. I was completely unprepared to learn that in our country, there are over 2,200 juveniles who have been convicted of crimes and sentenced to life without the possibility of parole.

In the rest of the world, there are a total of twelve juvenile offenders serving life without the chance of parole. Let me say that again. In the rest of the world there are only twelve.

In my home state of Colorado, there are currently 46 offenders who were convicted as juveniles and who are serving LWOP. When Kids Get Life profiles five of them.

I feel compassion for the victims and for the families of the victims. I lived in the communities where two of the crimes occurred and well remember the stories unfolding. But I don’t believe that the emotional weight of and the desires of the victims can weigh as heavily on how we choose to mete out justice in our society as it does.

Some people should never leave prison because they will always pose a threat to the rest of us. Some of these juveniles should probably never leave prison either. But the concept that we, as a civilized society would decide that children are irredeemable, should have no chance at rehabilitation or redemption is appalling to me. The idea that a person who is too young to drive a car, join the military or buy a beer can be tried and sentenced to stay in prison until they die a natural death, kill themselves or someone kills them is inconceivable.

I contacted Mary Ellen Johnson, the National Director of The Pendulum Foundation to see what I could do. An incredible woman, Mary Ellen has been fighting for changes in our juvenile justice system for fifteen years. She’s appeared on Frontline and on television programs broadcast in other countries. She’s been interviewed many times and has dedicated herself to trying to help a small group of people the rest of us would rather not think about. She’s been harassed and threatened for what she does.

Mary Ellen became involved in the case of Jacob Ind back in 1992. Jacob Ind murdered his mother and stepfather in the mountain town of Woodland Park. I lived in Colorado Springs at the time and I remember the case well. During the trial, it was revealed that both Jacob and his older brother had been subjected to violent abuse and to sexual molestation for years. I remembered that case because Jacob Ind was fifteen and he was tried as an adult and sentenced to life without the possibility of parole. Over the years, I’d see his case in the news now and then. When I saw Frontline, I was nearly sick. Jacob Ind is now thirty years old and bears little resemblance to the skinny teenager we all saw on the televised trial.

Nathan Ybanez and Erik Jensen, fifteen and sixteen at the time of their arrests were also profiled. Nathan murdered his mother and his friend Erik helped him to clean the crime scene. Nathan had been beaten by his stepfather and sexually molested by his mother for years. He’d run away repeatedly, but was always returned to his abusers. Erik’s parents called the county social services to report the abuse to Nathan and they were told that nothing could be done. Nathan and Erik are serving life without the possibility of parole.

I hesitate to shine a light on the stories of the abuse victims who killed their parents because in some ways, it feels like I’m trying to excuse their crimes or imply that the sentence of life without the possibility of parole should be used in some cases and not others. I don’t believe any juvenile should get this sentence.

No child should be sentenced to die in prison without any hope of redemption.

A fellow blogger coined the term obligation overload some months ago during a discussion about all of the social causes that need our attention: the environment, abused animals, children, disaster victims, incurable diseases, the homeless – the list goes on and on. I’ve always believed that we need to help other people and despite rumor to the contrary, there are a lot of good people who are making change and doing good things.

There aren’t many people who are trying to help convicted murderers. Maybe that’s why I feel like I need to. I can’t seem to get it out of my head that no other country in the world does to its child offenders what we do here. There’s a call to action on the Pendulum site that lists some things that people can do to help.

Public awareness is one of the things we can do. Talking about it is something we can do here. I believe that through raising awareness and through expressing opinions to our state lawmakers, we can make slow change. I’ve written to all of them and I’ve been surprised and encouraged at the number of responses I’ve received.

If you can make the time, please watch the episode of Frontline, visit the Pendulum website and think about what you can do to help. If you have suggestions and ideas about what can be done to raise awareness or to accelerate changing the laws, please comment or send me an email.

If you disagree, tell me why. If you support change, tell me that too. Let’s talk about this.