Juvenile Clemency Board in Colorado

6. August 2008 by Mary Ellen.

COLORADO : A LEADER IN JUVENILE JUSTICE

Coloradans have the opportunity to become worldwide leaders in what happens to juveniles when they are tried, convicted and incarcerated. To achieve this goal, Governor Ritter recently formed the first Juvenile Commutation and Pardon Board in the United States., Now, we believe it is time that he direct this Board and the Department of Corrections to create Juvenile Rehabilitation Programs, which can, and should, factor into commutation decisions for these juveniles.

Without question, Colorado must consider other civil justice policies than merely “throwing away the key” when a juvenile commits a crime. While the dictates of justice, and the considerations of victims are inarguable, we believe Colorado must also look at juvenile justice from a higher moral viewpoint than adult criminal justice.

Commutations for juvenile offenders are not the answer in every case, but to preclude commutations outright, as a matter of State policy, is to abrogate a cornerstone of our Constitution : that justice be meted out on the merits of each case - and not in the “one-punishment-fits-all” fashion we see today.

We believe that reduced sentences, in certain cases, are in the best interests of all Coloradans. By using Commutation as a potential reward for incarcerated juveniles, combined with a well organized series of programs for rehabilitation and education Colorado can become a leader in juvenile justice practice and a model for much-needed reforms.

Judges today, in cases of juveniles tried as adults, have few discretions to preclude unduly long sentences, or to factor rehabilitative potential in the punitive phase of a juvenile’s case. It may shock the sensibilities of most Coloradans to realize that there are dozens of juveniles now serving life without parole in Colorado prisons, and that these juveniles were charged as adults without any judicial role in that process, and were then sent to prison for life, with no judge ever being involved in the sentencing decision. These “lethal intersection” cases are a clear example of over-reaching prosecutors tipping the balance of powers in our State, without the citizenry ever realizing how unjust our system has become in these cases.

In the few cases where judges do still have some measure of sentencing discretion, the program options available for juvenile offenders are little more than a lock down boot camps. There is a place for boot camps in any juvenile justice program, but we believe these should be integrated with educational and rehabilitative programs that truly serve to redeem a juvenile offender while he or she pays the consequences of their actions by serving their sentence.

When a juvenile is tried and convicted , we as a State, must say,” We now have a duty, not only to punish this individual for the crimes they have committed, but to give them every chance for rehabilitation and education while serving their sentence. To otherwise return them to society without doing so, is a guarantee of a repeat cycle of failure and renewed criminal conduct.

Instead, in too many cases, unrestrained District Attorneys try them as adults, sentence them to extraordinarily long mandatory adult sentences, where they are incarcerated in adult prisons with no programs and no rehabilitation. We put these children into survival mode with the worst adult prisoners in our state, and keep them in warehouse facilities where the only “recreation” is violence.

No judge, no jury, no Governor, and no Parole or Commutation Board can know which juvenile will succeed in being rehabilitated and which will not. The way to find out, is to give them the opportunity. It is well said that morality and character cannot be infused, but rather, can only be illuminated. Custodial rehabilitation may be the only light some juveniles are ever given to rebuild their lives with. The best course is to give them the illuminating lights of rehabilitation and education, and measure their progress carefully. Lowering sentences does not have to mean automatic parole for unrepentant offenders. It should mean the opportunity for parole, if the juvenile is working towards true rehabilitation.

Compounding the problem is the fact that post-trial decision makers have very limited information as to which juveniles should receive consideration for a lowered or modified sentence. The only information entered into a juvenile’s in-custody file are negative indicators commonly known as incidents reports or write-ups. In fact, no system exists to report positive behavior, accomplishments while in custody, or rehabilitative progress. The only scoring done, is when the juvenile makes a mistake. Our government was not established to so unfairly prevent those who have fallen, from ever getting up, but that is the state of juvenile justice in Colorado today, and we believe this deserves attention and remedy.

Lest any Coloradan think these policies are only the problems of convicted criminals, you need only look at the cost of these policies that is borne by every citizen of our state, every single day. Our school graduation rates continue to fall, while our prison population continues to rise. While state spending on education over the past 10 years has increased by less than 21%, spending on prisons has increased more than 122%. When all our money is pulled from schools to build more prisons, it is no accident that our children follow. Case in point : merely housing the juveniles already sentenced to life without parole in our prisons today will cost the taxpayers more than $50 million dollars.

Colorado cannot afford the failed policies of the past.

That is why we call upon Governor Ritter to act. To rise above the failures of “throwing away the key”, and to implement policies and practices that balance all the diverse needs inherent in Colorado juvenile justice - the undeniable need for punitive sanctions for criminal conduct, the need for rehabilitation of juvenile offenders, and the need for the State to have policies which make moral and fiscal sense.

We believe Governor Ritter can and should direct the Juvenile Commutation and Pardon Board to make recommendations to the Department of Corrections as to which juveniles can be eligible for release programs after reviewing the file of each juvenile who asks for the program.

We believe that Governor Ritter should ensure that those who graduate from rehabilitative and educational programs then be eligible to apply to the Juvenile Commutation and Pardon Board for a reduced sentence.

Failing Executive Branch action, we believe this model should be put into law by the Legislature, so that judges can modify prison sentences for juveniles when they have earned eligibility.

Colorado can become a worldwide leader in Juvenile Justice. Not all, perhaps not even a majority, of the juveniles given such opportunities for redemption will succeed. Those that are redeemable, however, deserve the opportunity to work hard and earn a second chance. Not a free pardon. Not automatic parole. A second chance.

Who among us would deny this to someone who has paid a price for his crimes, and worked hard to earn this second chance?

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Sentencing Disparity for Juveniles

6. August 2008 by Mary Ellen.

When prosecutors and other proponents of locking kids up for life defend their position, they always maintain some version of the following:

“These are the worst of the worst.”

“A jury heard all the evidence and convicted them.” 

“You can’t just change the law. Victims would have to show up for endless parole hearings and would be re-traumatized.”

“We have to send a message so these punks will think twice before pulling the trigger.”

Today I’m going to tackle the opposition’s first “argument,” “These are  the worst of the worst.”

 

 No, they’re not.

 

We have kids serving life for a hit and run, who never pulled the trigger or knew that a crime was about to take place.  We have teens who killed their molesters. One young defendant was “the most severely abused child” social workers had ever seen. Some of these kids were obviously mentally ill when they were arrested and have grown worse since their incarceration.

 

 I know. I’m just making excuses for these kids. How dare I? 

 

Okay, but how about when it comes to adults? Why do grown men and women often get far lower sentences than juveniles?

Don’t believe me? Then how do you explain the following cases, which can be lifted from any Colorado newspaper on any given day?

 

A woman is convicted of shooting, dismembering and cannibalizing her boyfriend. Investigators find “bite-sized chunks of human flesh” in a cooking pot at the woman’s home. After10 years of treatment at the state hospital, the woman is allowed to leave,  “So long,” said the judge, “as she continues to take her medication and participate in therapy.”

 Now, we have kids who are bi-polar, borderline,  paranoid schizophrenic, who believe George Bush is going to pardon them and that their parents are the devil and who are suffering from post-traumatic stress from a lifetime of being sexually abused. Were they sent to a mental institution? Will they receive therapy? Will they be released so long as they take their medication and participate in therapy?

Not on your life.

Here’s another interesting story:

 A Colorado Springs man kills his friend and, following a plea bargain,  is sentenced to 16 years in prison. Police found the dead friend’s blood in the killer’s bedroom, the friend’s body in the crawl space of the killer’s house and a cigarette butt containing the killer’s DNA near the body. The killer denies knowing anything about his friend’s death. He also blames his problems on a long-time drug habit and said he robbed a bank – for which he was also charged—in order to pay off a drug debt.

So the guy gets a plea bargain from the same prosecutors who NEVER offer plea bargains to juveniles. The same prosecutors who say, “Abuse is no excuse. If you’re old enough to do the crime you’re old enough to do the time.” And, who have charged kids with first-degree murder on the most circumstantial of evidence. But when it’s an adult with a good attorney and when the adult has a drug habit and has to rob a bank and  takes full responsibility for his actions by denying he killed anybody, well, then 16 years is plenty of time to spend behind bars.

Previously I mentioned  the teen who’s serving life for a hit and run. Dietrick Mitchell’s been behind bars half his life now because he was 16, because, after accidentally hitting another teen  he turned himself in, because he was wrongly accused of being a gangbanger and because the accident took place late at night and Dietrick Mitchell was later found to have lousy eyesight. 

Of course he deserved life!

Think that’s an aberration? Here are a couple more hit-and-runs involving adults:

Forty-one-year Denver driver hits two pedestrians, killing one. The driver drags the dying man more than 600 feet. Apparently, the driver still had no idea that he’d hit anybody because he didn’t stop. Perhaps that’s the reason the judge charges the driver with “two counts of leaving the scene of an accident.” Do you think HE  spent any time in prison?

Once again, in Colorado Springs:

Pedestrian is struck by a Ford Expedition that doesn’t  even slow down following the fatal crash.  The defendant, 32-year-old Stony Ray Garcia,   has an extensive record, including more than 16 court cases involving two convictions for driving under the influence of alcohol, two convictions for driving with a suspended license, and many other cases including assault, larceny, theft, domestic violence, harassment and fraud.

 Because Mr. Garcia was no longer a teen he faced a grown up sentence – up to 10 years in prison. If only Dietrick Mitchell had an extensive arrest record and was a couple of decades older, he’d be back on the streets by now!

 

One of my favorite incidents involves Jeanne Smith, a former prosecutor and current head of Colorado’s juvenile clemency board, (which just turned down the first two juveniles who sought a reduced sentence after decades in prison). In the past, Ms. Smith also testified against Jacob Ind, one of our young LWOPS. Smith delighted in recounting to members of the judiciary committee the gruesome crime scene when Jacob killed his mother and step-father. Smith did neglect to detail  the lifetime of  physical, emotional and sexual abuse that the fifteen-year-old had suffered at the hands of his abusers before  killing them. (In Jacob’s case, motive doesn’t matter.) While Jacob Ind certainly deserved life without parole, Ms. Smith DID plea bargain the following adult murderer. This particular gentleman executed his girlfriend, cut up her body and threw the body by the railroad tracks.

 

Okay, so that crime isn’t nearly as heinous as Jacob’s.

 

Which is why, Jeanne Smith happily negotiated a prison sentence of twelve years.

 

And speaking of abused kids who kill their parents, we have two, Jacob Ind and Nathan Ybanez, serving life sentences. Fair enough. But what should the sentence be for a 38-year-old son who does the following to his 58-year-old father?

Throws a birthday party for Pops. Before the party Montoya the Younger douses Montoya the Older with kerosene, sets him ablaze with a cigarette lighter and says: “You are going to die today—happy birthday; you are the candle.” Several painful weeks later,  Montoya the Older expires. Being burned over your entire body has to be an extremely painful way to die, though Montoya the Younger’s lawyer described the fire as “an impulsive act” and says his client doesn’t think he’s guilty.

Let’s get this straight: kids are supposed to take full responsibility for their actions but adults aren’t — which may be the reason Martinez the Younger received a sentence of 16 years behind bars– with the possibility of parole after five.

Sixteen years seems to be a pretty standard sentence when an adult, rather than a teen, kills a family member. Here’s an adult, Matthew Schneider, whose 29-day-old son died from a brain hemorrhage caused by blunt force and shaken baby syndrome. Schneider admitted to causing his baby’s death  when he became “frustrated and snapped.”

While nobody had any sympathy for Jacob Ind and Nathan Ybanez, who were being raped by their parents before they became “frustrated and snapped,” guess it’s different when you kill a baby. 

“I don’t have any doubt in my mind what the right sentence is,” the judge said, before sentencing Schneider to 16 years. “It is not a light sentence. We have one huge lapse of judgment with tragic consequences.”

Killing a baby is merely a lapse of judgment. Killing your abusers merits you lifetime incarceration.

 Finally, there’s the problem of being in the wrong place at the wrong time. We have kids who were riding in a car driven by far older gang members. The gang members commit  a drive-by, which results in death. The kid had nothing to do with the shooting, though he’ll get life without parole while the older gang banger will probably get a lesser sentence. (They’re smart enough to roll over on the younger ones or  “snitch” about other crimes and negotiate a deal.)  Okay, once again we have the following:

Twenty-five-year-old female buys the bullets that she knows her boyfriend is going to use to kill his ex-girl friend. Boyfriend DOES kill the ex-girlfriend. Judge says he has the option of giving the 25- year-old “two to six years in Community Corrections or an indeterminate time on probation.”

Kid in the back seat of a car gets life. Adult who buys the bullets to kill someone – sounds like accessory to me – gets a halfway house?

And this is justice? And these kids rotting behind bars are the worst of the worst?

America’s justice system has many different levels – one level for the rich and privileged and politically connected and another for the rest of us. One for whites and a far harsher one for blacks. And one that, when it comes to children, believes only in retribution.

Just ask Colorado’s 48 kids serving life without parole.

Just  ask the 2,300 13-14-15-16-and-17-year-olds across America who were sentenced to die in prison.

But who cares?

After all, they’re only kids.

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