It is hard for most to put into perspective what the impact of the Supreme Court Rulings of Graham, Miller and now Montgomery would have on individual states. It is hard to understand the human cost and impact such rulings would have on the lives of those affected directly and the rest of the state as a whole.
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.
Everywhere we turn, and from every media source, we are hearing of injustice. Violence has erupted in the streets of this nation more times in the past year than it has in the past decade and actually since the mid 1960's. It seems that the entire nation is fed up with something. Everyone is angry, violence is once more seen as the answer to political and social differences and we are in great turmoil. It is no wonder. Our nation is under siege and we are not sure who the culprit is or how to protect ourselves or even why we are so angry.
The argument wages on in Colorado over what is cruel and unusual, as with the other states of this nation. Who or what do we have a right to be cruel too and who or what deserves a second chance? What is cruelty anyway and what is justice? What is the difference between accountability for one's actions and vengeance? Are mercy and compassion relevant in a country searching for a moral compass? What is punishment and what is revenge? Do we have to apply the eighth amendment of the constitution, denouncing cruel and unusual punishment, too everyone or can we just say "sorry we won't do that from now on"? I think the question is much larger and should cause us to look at the American disconnect.
The Disconnect In Children's Policies
Advocates for juvenile justice reform would appear to have the strongest footing for change since society is surely most compassionate concerning the welfare of children. Current school policies allow for a 5 year old child to be expelled from school for kissing a girl on the cheek. There are policies in place that can cause a child to become in conflict with authorities and find him/herself in juvenile court for disruptions in class. Many states have truant policies in place that can result in the arrest of a child. The zero tolerance policies in school systems have created what educators and analysts have come to term "the school to prison pipeline".
For minor infractions, a child is shamed and banished from asscociating with his/her peers. These punishments for minor infractions have lasting effects on developing minds and personalities. With these violations can come a myriad of punishments and consequences. Every time a child is required to appear in court while being held in juvenile detention for any minor infraction, he/she is shackled. That is correct. The child is handcuffed and chained. Are these violent predators? No, they are children that have skipped school, run away from home, had a confrontation with a person in authority or a child that brought his new water gun or hunting knife to school. Yes it is true there are children in juvenile detention facilities because they are consistently defiant of authority but instead of correcting the cause we punish the child.
At the same time that we are so intolerant of childhood behaviors we have become entirely too indulging in parenting. Take, for example, the little league soccer and baseball teams that encourage everyone to participate and give awards at the end of the season to everyone because "every person is a winner". In life, there are no sports or competitions where every person is a winner. The process of trying and failing or trying and succeeding is what builds character and self esteem. The building of character comes from hard work, winning with humility and losing with grace. It comes from understanding that everything comes with diligence, effort, learning and application. Solid self esteem is formed when the child learns that his/her value is not based on his/her successes or failures but on his/her value as an individual person.
These elite attitudes that value only winning, success, perfect behavior and outstanding achievements also bring about social and class divides. If you don't think this is true watch the actions of parents of school children at sporting and social events. Then take note of the children imitating their parents actions, words and attitudes.
There are those who have not been given any direction or the direction they have received is dangerous. What is the responsibility of a child raised in a violent home for his aggressive actions? What is the responsibility of a child that has been taught that violence is normal, that abuse is normal, that drugs and alcohol are always available and that they, as human beings, are of no consequence when they run in conflict of others and the law? What are we too hold them accountable for but more importantly what are we accountable for? Are these children our responsibility? Are we responsible for their welfare and protection? Should we correct and rehabilitate them or should we punish and condemn them by locking them away?
This is one of America's disconnects. We run to foreign nations to rescue starving children or those who are living in squalor. We champion the cause of children who are raised in unique families but we punish and humiliate the child that cannot meet rigorous education or behavior standards. We condemn the violence of war that destroys the homes and families of children but we throw our own children away, condemning them to shackles, iron doors and banishment from mainstream society and from hope.
Juvenile or Adult Disconnect
Any parent will tell you that the terrible two's and three's, the childhood illnesses and the learning/growth curve are NOTHING compared to parenting a teenager. It is the most intense social, psychological and physical transformation that a person will go through in their lifetime. Scientific evidence shows that brain development imperative to judgement, rational thought, critical thinking and understanding consequences is not completed until the early twenties. It is during this most crucial time of development that youths are also required to make important life decisions and begin handling freedoms that lead to future independence. It starts with the simple choices like who they hang out with, what sports or interests to engage in and whether or not to date. These choices may seem simple and youthful but assuredly they can make or devastate a life and a future. There are new skills they must master like driving, banking, working and balancing a schedule. These new skills and freedoms also bring them face to face with new temptations and societies tolerance for mistakes is even less than when they were children.
Kids screw up...period. They always have and they always will. That is why kids still live at home while they are trying their wings. That is why civil society does not allow them to enter into legal contracts, open bank accounts, get married, join the military or buy a vehicle without the signature of a parent.
The Justice Disconnect
The United States has begun to see the consequences of the criminal justice policies that have been in place for the last two decades. Authorities have also begun to question incarceration practices in general as viable and sustainable. Policymakers and professionals have begun to realize that our lack of care, services and attention given to mental illness and substance abuse have cost us greatly both financially and in the standard of living in this nation. In other words, the current moral, social and financial crises in this country are a result of this nation's actions and policies. Nothing is without consequence. Violence begets violence; hateful acts beget hatred. The violence begins with the violent acts of a nation against its own population as evidenced by overzealous prosecutorial practices that are applauded by governments; extremely harsh and lengthy sentences; probationary practices and laws that make it impossible for anyone who has served time to get a job or a place to live; juvenile justice practices that condemn children to die in adult prisons; mentally ill and addicted persons left untreated in prison cells. Prison in itself is a violent act against the sovereignty of a human being to exist without chains or fetters and denying the opportunity for the errant to redeem himself and his actions.
No longer are citizens afforded the opportunity of a fair trial and to face their accusers as 90% of convictions are a result of negotiated plea agreements. Let me give you an example of how dangerous that is in the case of a juvenile defendant. Jonny was originally charged with 10 counts and the district attorney expected that his attorney would recommend he give a statement. The attorney did not agree to a statement so the district attorney amended Jonny's charges and added 16 more counts. The district attorney continued amending jonny's charges and pressuring him to accept a plea agreement for two and a half years without ever going to trial. The district attorney threatened him with 36 counts against him and then added felony murder in order to manipulate this young man into taking a plea agreement and thus closing the case, unsolved and unsatisfied, with three young men giving up their lives to achieve the desired result of the DA. The trend of negotiated plea agreements has resulted in wrongful convictions, over sentencing and overpopulation of prisons. In 2015 there were 149 exonerations in the United States and 27 exonerations were for convictions based on false confessions with 80% of those false confessions being made by a person under 18 or mentally ill or both. There were 65 exonerations for convictions based on guilty plea and while most were drug related charges 8 of those were for murder. (statistics from The National Registry of Exonerations).
In other words, maybe you didn't commit the crime but can you really convince a jury of that and are you not better served by pleading guilty to a lesser charge and doing a little time? It is no longer necessary to have compelling evidence that an individual committed a crime it is only necessary to convince said individual that someone might think him guilty enough to punish him.
Cruel and Unusual
The same authorities responsible for plea agreements and wrongful convictions are the ones responsible for convincing the American public that the answer to crime and safer communities is mandatory minimum sentences, harsh sentences and life without parole. Their ideas and policies have proven to be failures and have destroyed families, communities and this nation. This nation treats its brothers with cruelty, severity and disdain. It destroys their families, their children and the communities they come from by leaving them in poverty. The nation takes young kids and decides, based on one event, that they will never be more than their worst mistake. At 15, 16 and 17 the government decides what the potential for this human being is. The state governments of this nation have a love affair with punishment, condemnation and hyperbol. The elected officials take pride in being tough and brutish and assure the citizens that they will be protected from harm. The media is enlisted to overdramatize every little incident and incite fear in the citizens to ensure that the power to condemn and punish is left in the hands of authorities. So now the questions. Is it cruel to take 15 years of a person's life for drug possession? What is gained by 15 years in prison? Is it cruel to convict a person of vehicular manslaughter when the person killed was his son and now, in addition to grief and loss he must suffer 20 years in prison? Is is cruel to sentence a 17 year old kid to 66 years in prison when he has never been in trouble before and the evidence shows that he was only an accessory after the fact? Yes to all. Is it unusual? Not in this country but in this rest of the world? Yes.
While lawmakers in Colorado are hesitant to get behind criminal justice reform measures of any kind, there are changes they may HAVE to make in the future. The recent SCOTUS ruling concerning the retroactive application of Miller and Graham (juvenile life without parole) is just the beginning.
The next rulings that may well force the hand of lawmakers across the United States and in Colorado will answer the question "What constitutes a life sentence?" "Are adult mandatory sentences applicable to juvenile offenders?" Here is an informative article on the topic: Justices to Continue Shaping Eighth Amendment Case Law for Juveniles
In Colorado alone there are approximately 2000 men and women who were sentenced to adult prisons for crimes they committed as juveniles and they are serving what is considered de facto life sentences. In other words, these kids were given consecutive sentences that add up to 50, 60 75, 100 200 years in prison. Yes at 15, 16 or 17 they were told that they would spend their lives in prison. In most cases these sentences were effected by mandatory minimum sentencing guidelines that tied the hands of the judges.
The Colorado Appellate Court handed down a powerful ruling in Rainer vs Colorado ruling that Rainer's 222 year sentence was unconstitutional. That case is now headed for the Colorado Supreme Court. We will see how it turns out. In the mean time, there are cases like Rainer's that are already headed to the US Supreme Court. In addition there are cases that may answer another burning question "What is the life expectancy of an inmate?"
Colorado may be dragged into the criminal justice reform movement kicking and screaming....but reform will come.
Concerning the legality of Juvenile Life Without Parole Sentences:
Under the Supremacy Clause of the Constitution, state collateral review courts have no greater power than federal habeas courts to mandate that a prisoner continue to suffer punishment barred by the Constitution. If a state collateral proceeding is open to a claim controlled by federal law, the state court “has a duty to grant the relief that federal law requires.” Yates, 484 U. S., at 218. Where state collateral review proceedings permit prisoners to challenge the lawfulness of their confinement, States cannot refuse to give retroactive effect to a substantive constitutional right that determines the outcome of that challenge.
As a corollary to a child’s lesser culpability, Miller recognized that “the distinctive attributes of youth diminish the penological justifications” for imposing life without parole on juvenile offenders. 567 U. S., at ___ (slip op., at 9). Because retribution “relates to an offender’s blameworthiness, the case for retribution is not as strong with a minor as with an adult.” Ibid. (quoting Graham, supra, at 71; internal quotation marks omitted). The deterrence rationale likewise does not suffice, since “the same characteristics that render juveniles less culpable than adults— their immaturity, recklessness, and impetuosity—make them less likely to consider potential punishment.” 567 U. S., at ___–___ (slip op., at 9–10) (internal quotation marks omitted). The need for incapacitation is lessened, too, because ordinary adolescent development diminishes the likelihood that a juvenile offender “‘forever will be a danger to society.’” Id., at ___ (slip op., at 10) (quoting Graham, 560 U. S., at 72). Rehabilitation is not a satisfactory rationale, either. Rehabilitation cannot justify the sentence, as life without parole “forswears altogether the rehabilitative ideal.” 567 U. S., at ___ (slip op., at 10) (quoting Graham, supra, at 74).
The Court now holds that Miller announced a substantive rule of constitutional law. The conclusion that Miller states a substantive rule comports with the principles that informed Teague. Teague sought to balance the important goals of finality and comity with the liberty interests of those imprisoned pursuant to rules later deemed unconstitutional. Miller’s conclusion that the sentence of life without parole is disproportionate for the vast majority of juvenile offenders raises a grave risk that many are being held in violation of the Constitution.
Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. See, e.g., Wyo. Stat. Ann. §6–10–301(c) (2013) (juvenile homicide offenders eligible for parole after 25 years). Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment. Extending parole eligibility to juvenile offenders does not impose an onerous burden on the States, nor does it disturb the finality of state convictions. Those prisoners who have shown an inability to reform will continue to serve life sentences. The opportunity for release will be afforded to those who demonstrate the truth of Miller’s central intuition—that children who commit even heinous crimes are capable of change.
Read the entire Opinion here - Montgomery vs Louisiana
Another year has passed. Another year of visiting my son in prison. Another year since he has been sentenced to what constitutes life in prison. While we gather with our families and friends, celebrating and sharing warmth and love, creating memories that we will hold in our hearts for years to come, there is a hole in my heart. An empty place that cannot be filled by gaiety and merriment.
All across the United States are millions of families that have that same hole, that empty place at the table, the empty place in the living room, an empty chair that sits on the wall. We have created a nation of law and punishment. We have created a nation of self righteousness and condemnation. We have created a nation of intolerance and vengeance. The losers? Families, children, communities and even the nation.
We have yet to learn that all people make mistakes. All people stumble and fall short. It is not the stumbling, the failure, the mistakes that reveal the heart of the man, it is his ability to overcome those things. We are all failures at something. We have all stumbled over something. As the saying goes, "It matter not that you fall one hundred times...it is that you get up one hundred and one."
We have CHOSEN vengeance and condemnation in this country and put it into practice in our injustice system. We have CHOSEN anger, bitterness and hatred. Look around. See the cost.
There are evidence based practices in other westernized cultures that prove accountability, education, humane treatment and forgiveness work. Not only do they work but the community and the nation's become BETTER for it. They have seen the high cost of condemnation and mass incarceration and refused to accept the destruction that it brought to their nation.
The United States needs to come to this same realization. The United States needs to realize that vengeance, bitterness and retribution only brings division and hatred....and fear.
Wake up America...Prison Doesn't Work.
Until that day comes, during times of celebration, millions of families will gather together and quietly pass the empty chair... grabbing their chest, trying to comfort the hole in their hearts.
Today I am celebrating the birth of my son from this side of razor wire. It is the fourteenth year that we have celebrated in this way. Is my sadness caused by the fact that my son is in prison? Yes. It is not the residence I had envisioned for my son. Is my sadness caused because in fourteen years we have not been able to find the key to unlock those prison doors for him? Yes of course. Even greater than these is the profound sadness that comes from being unable to spend time with the man my son has become. I have a finite number of days on this earth and to miss the opportunity to interact with this person I call my son is painful. He has grown from the naive boy with misplaced loyalty to "friends" who betrayed him for personal gain, into a man of wisdom and maturity and compassion. A seemingly impossible feat given his circumstance. To spend time sitting on the patio discussing the world; or to playfully tease and razz each other; or to work again side by side are in my imagination today.
It also causes me to wrestle with larger philosophical questions. What is accountability? What is equitable punishment? How do we mend the anger and venomous actions in our world? Are we best served by locking up a thief or are we better served by causing the thief to repay what he has stolen? The measure for measure concept (the old school version was eye for an eye) would cause the thief to return what he had stolen and one fifth more to repay the distress/loss that he caused. Does prison serve that purpose? What is prison for? Is it strictly for punishment or vengeance upon the wrongdoer? Is that healthy? Is that productive? And the even greater question, does it restore health and elevate the community?
There is hardly a place in the media today that is not speaking of violence, hatred, destruction, division and these sources are trying its best to perpetuate this destructive vitriol. Why are we so angry? What are we railing against and to what end? Why are we so divided? The answer, it seems to me, is simple. We have lost our foundation, we have lost our moral compass and we need truth. Real honest truth and not the partial truths that come from justifications perpetrated on us by those with an agenda seeking to empower their cause. This is the very reason that I wrestle with the questions stated above.
Jonny is a very good artist. We both admire the great artists of history. One of those artist's style portrays the evolution we need to achieve as people. Georges Seurat is famous for the painting "A Sunday Afternoon on the Island of La Grande Jatte" His particular style is based on his scientific understanding of light and color. He meticulously created this painting with points or "dots" of color that created each image. I had the honor of viewing this work at the Metropolitan Museum of Art. The shear size (7 feet by 10 feet) overwhelms you. When you stand close to the painting you can see the tiny points of color that create the shades, light and hues of color that eventually create the entire scene. We as human beings are the same as those tiny points of light and color, each meticulously placed in accordance to the rest to create an amazing canvas and image. Remove one point, darken one point and the image is marred, the landscape is corrupted. We are struggling to find a way to create an amazing canvas with all the different dots of light and color. For now our canvas is a mess but maybe one day it will be an amazing portrait of grace and beauty.
In the meantime, I sit on this side of the razor wire, most of the dots on my canvas in place, but with an entire section left dark. Happy birthday son. I love you and I am proud of you.
While Colorado legislators chose not to deal with the issue of retroactive unjust juvenile sentences, others are learning that the United States, as a whole, are behind the rest of the world in justice policies. There are many nations who have found that the practices which the United States embraces concerning juvenile criminal justice policies are counterproductive and destructive.
For instance Germany has been treating 18-21 year olds in juvenile court since 1953. The Netherlands raised the age for juvenile court to encompass 23 year olds in 2014. These nations have taken full consideration of the research which outlines the juvenile brain development and that juveniles are very amenable to treatment and rehabilitation. The focus of European facilities is focussed on education, psychological treatment, training and community service. The result is that the juvenile, NO MATTER THE SEVERITY OF THE CRIME, is valued, treated and given the opportunity to redeem him/herself and then be restored to community. NO MATTER THE SEVERITY OF THE CRIME. AND THE SYSTEM WORKS!
Recently advocates for juvenile justice reform and other dignitaries from the United States had the opportunity to share their experience as they toured several European facilities and spoke with the professionals there. Please read ON
"England is not the only European country that is transforming its justice system to consider the maturity and educational needs of youth and young adults, with the goal of increasing the juvenile age to 21. Germany has been treating 18 to 21 year olds in juvenile court since 1953. Prison sentences range from five to 10 years, even for the most serious offenders, and are served in special youth prisons that offer a wide range of education and vocational training."
Last week a Colorado Republican chose to change his stand, in the 11th hour, on a bill presented by Democratic Representative Kagan that would have brought Colorado into constitutional compliance regarding 48 juveniles serving life without parole sentences. Who knows what the reason for the last minute change but we can be assured that the republican party in Colorado does not value the law or the constitution of this nation even though they use that platform during election. Theses 48 people would be given a CHANCE, not a free pass. We, as the citizens of this state, would begin taking steps AWAY from vengeance and towards justice and we would begin with kids, the most amenable to rehabilitation. It was not to be.
The question is why? The prosecutors will tell you that they made a promise that these kids would never come out of prison. Let me tell you something. Not one prosecutor met these kids, spoke with them, they did not interview them, and they did not know anything of their family or their life until they got them into court. The prosecutor decided, solely at his own discretion, who would be transferred from juvenile court into adult court with adult consequences. That USED to be the way we meted justice to kids. (Juvenile transfer laws, as of 2014, now require a hearing before a juvenile case can be moved to adult court)
Maybe it was because of the platform issues that they used at election time. Maybe they were afraid that their constituents would be against holding up the constitution complying with the rulings of the high courts of this state. or giving kids a second chance. Maybe they were afraid to step outside the box or maybe they made a trade and these kids lost the lottery pull.....again.
Whatever the reason Colorado has some notoriety that it will have to deal with. Colorado is home to the most notorious Supermax prison in the country, ADX in Florence , CO. This facility has been the focus of many lawsuits for the overuse and prolonged use of solitary confinement and other conditions being challenged at this facility. While many have written about this, Colorado made the New York Times today.
The most recent telling information came in this statement: Colorado has more people in prison cells than in college dorms. Colorado is part of a group of 16 states that can boast the same statistics, all of them in the south.
Here is an excerpt from the article by David Love written for The Grio:
Let that sink in for a minute. More people behind bars than in the dorms. What could it be about the South that would explain this? Could it be a tradition of slavery, racial violence and Jim Crow segregation, a legacy of criminalizing and dehumanizing people and of just not treating folks very well?
Read the entire article and view the map here
And now we can add the public fact that Colorado refuses to address sentencing reform for these 48 people.
This legislation had strong community support. Advocates and victims were both in favor of this legislation. The legislators had their voicemails and email boxes filled by supporters yet they chose to kill the bill. The US Supreme court ruled that these sentences must be reformed. The Colorado Appellate court ruled that these sentences must be reformed yet they chose to kill the bill. The question remains why?
The citizens of this state are keeping track of how their representatives vote. The citizens are ready for reform and they will find those who are ready to help them achieve it.
Justice without compassion is vengeance.
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