In Colorado there are 48 people serving juvenile life without the possibility of parole sentences. It is believed (I have no hard numbers) that there are approximately 2000 serving de facto life sentences, meaning sentences that are the equivalent to life. Everyone of these sentences could have been largely impacted by a sentencing court if the letter and intention of the above mentioned SCOTUS rulings had been in place at the time of sentencing. However, Montgomery states that the letter and intention of the Supreme Court rulings must be applied retroactively. What could that mean?
Let us take a case in point, that of Jonny, who is serving a de facto life sentence of 66 years. Let us also presume that the letter and intention of Graham and Miller have changed the face of juvenile sentencing practices.
When Jonny was arrested a direct file of information sent his case into adult court. This was done on the sole recommendation of the district attorney. At no time during the course of the proceedings was there any mention of, or investigation into, who Jonny was. Who was his family? Where did he come from? How amenable to rehabilitation was he? What was his true role or responsibility in the crime and was he capable of processing the impact his involvement would have in the course of the crime or his future? In other words, the impact of his age, his decision making process, his maturity, the influence of peer pressure, his ability to assist in his defense, his understanding of the criminal process and the impact the proceedings would have on the rest of his life was never considered. He was a child in an adult world where the language and consequences were outside his realm of understanding.
At the time of Jonny's sentencing, the sentencing judge stated that he realized Jonny may be rehabilitated after 10 years but that he must answer to the state and the family and therefore sentenced him to 66 years. The rulings of Graham and Miller have influenced the reform of other juvenile justice policies in Colorado. For instance it is no longer possible to sentence a juvenile to life without the possibility of parole, instead a mandatory 40 years to life is given. It is no longer possible for a district attorney to file a direct transfer to adult court. The state now requires a hearing where the defense and prosecutor present information pertaining to the juvenile, the charges and the likelihood of conviction before a juvenile transfer is granted.
At the time that Jonny was transferred to adult court and jail there was no physical evidence to support the charges against him, only the statement of one kid. A search warrant was never issued for his home or his room. He was never given miranda rights, he was denied the right to a fair and speedy trial and he was pressured by the DA for two and half years until he finally took a plea agreement. Why did he take a plea agreement? Because, as he stated to me, he never believed he would be given a fair trial or have adequate defense.
The changes and protections that have come about as a result of the Miller and Graham rulings and the language and protections outlined by the justices in these opinions, have once again turned the tide of juvenile justice. The Supreme Court has stated that all mitigating factors must be considered when sentencing a juvenile and that the possibility for rehabilitation must be foremost in the thoughts of the sentencing court. In other words we must consider and protect the errant youth, knowing that he/she will mature and has the possibility to become a responsible member of society.
For Jonny that would mean that he may never have ended up in adult court and even if he did he would have been given the opportunity to show himself redeemable and rehabilitated after 10 years. Instead he has been incarcerated for 15 years.....and counting.
It is not only true for Jonny but for all those juveniles serving adult sentences. Colorado has chosen not to act on these SCOTUS rulings concerning the constitutionality of these harsh sentences. The political climate has kept Colorado from coming into compliance with the letter and intention of these rulings. Even the Montgomery ruling declaring that these rulings must be applied retroactively has not moved the Colorado legislators to action. Soon these questions will be considered in the United States Supreme Court: "What is life, is it 20 years, 35 years?" "Is it cruel and unusual to apply adult punishments to a juvenile? " "What constitutes cruelty and torture in the confinement of a juvenile?" These questions will cause us to ask the bottom line question, "Are kids capable of change and do we really care for our kids....even the ones who make mistakes?"
May relief come to Jonny and all the others soon. If you met them now, you would see that they are no longer that kid you were so angry at. Who knows, you might even like them.