Compassion in Juvenile Sentencing

This post is the third in an eight part series of questions asked to and answered by Jacob Ind, who is currently serving LWOP in Colorado. Jacob was incarcerated at 15 and is now 30 years old.

Read Part 1 here. Read Part 2 here.

You’ve described a prisoner indoctrination process for new inmates that seems like a catch-22 situation where the “Fish” will be tested and is forced to fight (which will get him in trouble) or be victimized by the various groups inside. You’ve been in the prison system for nearly 15 years now and it sounds like you are able to sidestep associating with gangs and elements that are sure to get you into trouble. How long must a person be inside, or what has to happen for a prisoner to finally get to the point where he can be left alone to do his own thing?

Prison is a sick world. It is truly a case of the inmates running the asylum. In Colorado, the guards have quite a bit of control. Inmate rule is not absolute, but this is only compared with other prison systems. Not matter what, the guards only have the power that the inmates cede to them and individual inmates live or die at the whim of their peers. For instance, if all the inmates went on a work strike, and guards had to cook the food, clean the units, do the laundry, and do all the maintenance; the prison system would grind to a halt and would become bankrupt quickly. The system knows this so there is a constant back and forth when it comes to privileges and freedoms. Because of that, inmates have a great deal of control over who lives in their unit. If a snitch or a child molester moves in and the other inmates don’t like it, he will be forced to move. He’ll either make the cops move him (guards have been known to refuse to move someone who goes to them seeking protection, unless he makes his situation worse by snitching, and send them back in harm’s way), or he will leave on a stretcher. Since there is no protective custody in Colorado, people who are in that boat get bounced around from unit to unit; facility to facility, getting terrorized wherever they go. It is a miserable existence for them.

 

This reality makes it important to not violate the social rules of prison. There are levels of inmates and, just like in school, the higher levels pick on the lower levels. Rats, sex offenders, and “Check-Ins” (those who run to the cops for a protective move) are on the bottom rung. They are forced to pay “rent” (protection money), are robbed, beaten by new guys trying to impress people, can get raped with impunity, and are treated badly.

 

The run above them are “Nacks”. Basically, they are viewed as potential rats or Check-Ins. In this class are those who won’t fight or who allow others to “disrespect” them without retaliating with violence. People who refuse to break minor rules, like pass magazines in Ad-Seg, are also put on “Nack Status”. Nacks are wholly without protection for the most part. Some people are labeled Nacks because they don’t fit in but if they stand their ground, somebody will usually help them out. But those who refuse to fight or who flaunt the prison “ethic” are free to prey upon. Predators will try to intimidate them into turning into homosexuals, charge them rent, or scam them for their money. Refusal to pay up will result in an attempt to Check-In the nack, which is typically successful. Nacks also have no protection against slander. If someone thinks somebody has snitched on them, the Nack is the first suspect and likely to be attacked without proof. Basically, a Nack is a sheep among wolves.

 

The top rung of the prison social ladder is the Convict. He is the prisoner who doesn’t snitch, would rather go out on a stretcher than Check In, isn’t afraid to fight, and lives within the “Convict Code”. Within the Convict class are those who mind their business, gang members, predators and everything in between. Being a Convict comes with its privileges and responsibilities. A Convict is usually free from predatorial attack. Aside from the fact that a Convict is proven to stand his ground and predators are cowards, looking for easy prey, even if the Convict is the worst fighter on earth, others will keep him from getting jumped, robbed, or raped (or retaliate severely if it does happen) – as long as he continues to stand his ground. It also requires “proof” before a Convict is accused of being a snitch (such as court files). Rules like that are enforced with brutality. However, Convicts are also expected to participate in any demonstrations against the system, race riots, or keeping their fellow Convict of the same race from being jumped.

 

All new guys to the system are eventually tested to see what rung on the social ladder they belong on. Usually, even “fish” (new guys) who seem to be Nacks will be taken under wing and schooled, given a fair chance to prove themselves as Convicts. It is a crucial time because it is very unforgiving. Checking-In or snitching is never forgiven and will follow the guy for life (as will homosexuality). A guy may back down from a fight once or twice during this time if (and only if) he makes up for it by fighting whoever he backed down from – and even that is not guaranteed.

 

For young kids entering the system, they have to make critical decisions, life changing decisions, very quickly and which they are completely unqualified to make. Kids are notorious for making bad decisions and not looking at the long run. What they see is a class of people treated like crap (Nacks and the snitch class) and the “cool” guys coaxing him in. The fear of not being a victim becomes far more important than deciding what kind of Convict is the best to become for his future. The “coolest” guys are the violent gang members and they suck in the many kids who are just trying to fit in. Sometimes the more mellow Convicts get ahold of kids and steer them on the right path. But no matter what, the kid will be challenged and have to fight.

 

After a new guy in the system fights once or twice, he will be left alone as long as he carries himself correctly. If he projects weakness, he will invite attacks from bullies, but if he projects too much of a tough guy attitude he will be challenged by people trying to make a name for themselves or expected to participate in terrorizing the lower rungs of inmate society. Either extreme will cause far more problems than necessary. But even those who maintain a happy medium of confidence, but not aggressiveness will have to prove themselves every so often. In my experience, the lowest amount of problems one can expect and remain above prey status is one fight a year. There’s always going to be an asshole along the way which does something which requires a fight by Convict standards, especially when somebody is new to a facility. That’s just the nature of the wolf pack and make no mistake about it, those who run Convict society are vicious animals.

 

For most kids entering adult prison, it takes a while to find their niche (just like it does in the free world). We tend to have flirted with trying to be the cool guys and trying to be left alone but it takes years of experience and hard knocks to find ourselves and our place. Some never do and some, unfortunately find their place is at the top of the ladder. We weren’t equipped with skills to navigate this tumultuous sea and there aren’t any people there to prepare us for what to expect. We are thrown into the deep end to sink or swim with the sharks.

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.

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.