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.