We, as citizens, have called on the legislators of this nation to begin these changes with the most vulnerable of all that we condemn, our children. We have asked legislators to consider if what we are doing is RIGHT. We have asked them to consider the morality and social justice of our current laws. When that went nowhere the brave freedom fighters of our time waged a battle in the courts fighting all the way to the highest court in the land. They heard the pleas, they heard the arguments and stories of these youth. They considered all the information from psychologists, behavior specialists and they considered the constitution and found that we were indeed a cruel nation. The highest court in this land declared that the practices of justice concerning juveniles offenders was cruel and unusual and the laws in our states were unconstitutional.
Still nothing changes, still our nation drags its feet. For some reason state governments are unwilling to let go of their power to condemn, to harm and destroy, to torture its citizens. In spite of the law, in spite of the constitution. Some of you may be thinking to yourselves that the statements made are unwarranted and a little over dramatic so let me paint a picture for you.
A boy endures 14 years of abuse at the hands of his parents, the ones responsible for his safety and care. His life has been filled with violence, hate, anger and his body bears the scars, his heart yearns for a safe place. The cries have gone out time and again for help, for someone to save him but no one hears. The evidence of these pleas follow him from place to place until finally one day he realizes his survival is in his own hands. He picks up a gun and commits murder. Then this child who has been terrorized his whole life is handcuffed, thrown into an isolation cell, pulled from this cell to courtrooms to interrogations rooms. He is terrified...again and again...not understanding what is happening or what will happen to him. The names he has been called all his life, worthless, disposable, useless are written across his case files along with violent murderer but no one spoke words about the things he already endured. He is fitted with clothes too big for him, shackled and chained and left alone to try and navigate through a world doling out more abuse. Finally condemned and sentenced he is left alone. Totally alone with an emptiness of sole, a void unbearable to imagine. The child is finally destroyed.
A boy of 16 is 10 foot tall and bulletproof. He has his drivers licence, a car and some money in his pocket. He is finally going to have the time of his life. Off to party with friends, take his friends for a ride believing he has arrived. He turns the corner in his car, the music blasting, beer swirling in his brain, laughter and jokes filling the air and suddenly everything crashes in. An accident, a terrible accident and everything goes from bright colors to dark terror. His friends are injured, he is bleeding, the car is totaled and then he finds out that in the other vehicle someone died. Someone died. The boy that was ten feet tall suddenly shrinks to a child, sobbing as he is yanked from the curb, cuffs slapped on his wrists, he is screaming for his dad wondering what in the world is happening. His father is helpless, his son ripped from him and he cannot save him or protect him. This child is treated as a monster, called a monster, ripped from life and shackled, thrown into an isolation cell. The lights are on all day and night, no understanding of time, no knowledge of the day, not understanding what is happening or where he will be yanked to next. Terrorized, bewildered and confused he is brought into court. He cannot respond, he is in shock, the world spinning before him and a series of voices bouncing in his head, the prosecutor jabs a finger in his direction and shouts, "You see he shows no remorse!" Remorse? He doesn't even know where he is or how he got there...it is all a nightmare...we have terrorized another child.
In this city there is a neighborhood where no one travels unless you know the streets. Poverty, violence, drugs and oppression can be felt in the atmosphere. Boys become men on these streets. They are given a different rite of passage than the rest of us. It is called survival. A boy is given a gun and he is told he will need this if he is to stay alive. He believes it. He has watched neighbors and friends die. He has seen his friends beaten, harassed and intimidated. He holds the gun in his hand and looks it over. It is heavy and he doesn't like the way it feels but he carries it anyway as he leaves his house. He stands with his friends on the street talking about cars, girls and listening to music. A car rounds the corner and loud explosions come from inside the vehicle. He reaches into his pocket and finds the cold steel in his hand. He pulls the trigger for the first time, he has never shot a gun before. It kicks back against his hand and jolts his arm. As the explosions stop, as the crashing and screaming come to a halt, he looks and finds bodies on the ground, a car crushed against another vehicle and the screaming starts again. Mothers, families run to the streets wailing for the death that has just covered the street. The boy is grabbed, handcuffed and whisked away. He is thrown in an isolation cell. What just happened? Surely he didn't hurt anyone, he wasn't even good with a gun. How could he have hit anything? Then he finds out his gun, his hand, took the life of another boy. His gun. Everything spins out of control. His mama weeping, cops yelling at him, chains on his ankles, and the finger of the prosecutor jabbed at him, "You see he shows no remorse! He is a violent young man! A danger to this city!" No, he is a boy caught in a nightmare...we have terrorised another child. The destruction on the street that day claimed everyone, every family as it's victim and took a piece of the soul of the city.
It is true that the behavior of our children needs to be held in check. Yes, behaviors that are on a path of destruction need to be arrested by the authority of the adults in the community. Yes, children have a tendency to try everything once even when we warn them about the potential harm and sometimes the consequences are devastating. Sometimes they really screw up and there is no way to repair the damage. They are kids, they are impetuous, careless, adventurous and daring. They act without thinking, they follow without looking ahead, they believe they are immune to consequences and they try to fly without parachutes; drive without brakes and climb without ropes. As parents we have followed behind them with every step trying to prevent their falls and catching them when they do. Then something unimaginable happens. Something beyond our comprehension. When these things happen are we not supposed to continue acting as the parents, as the adults and find a way to get these kids back on the right course? Or are we to look in their faces and tell them they are beyond our help, that they cannot be salvaged and therefore must be locked away for the rest of their lives?
Prison doesn't work. It costs all of us too much and destroys our quality of life. The governments of our states, at the encouragement of prosecutors, have sought the harshest punishment in the most inhumane conditions to satisfy a false justice. Justice without compassion is vengeance. Compassion without justice is unmerited mercy. A nation whose base moral value declares Divine Forgiveness takes retribution and vengeance into its own hands believing that the creator of the heavens and the universe needs a hand in meting out justice. The conditions inside of prisons, the dehumanisation endured by kids, men and women condemned by us are atrocities that will go down in the annals of time as barbaric. The torture inflicted upon human beings not only destroys them but it destroys us. It takes us back to our base animal nature, our self-centered territorial possession and need to control and harm and brutalize anything that comes against us.
So today we, as the citizens of this state and this nation stand and tell lawmakers no more. We do not care about politics or careers or election platforms. Prison doesn't work. It costs all of us too much and destroys our quality of life. We care about our communities and the people who live in them. We care that there is poverty, violence, abuse, addiction and harm and we want to find a solution that brings healing, restoration and health. The laws and practices that our states and this nation have enacted have not worked and we don't want them. We have raised our voices, filled voicemail boxes, burned up fax machines and filled in boxes. Lawmakers have not listened and instead have continued the tired political arguments seeking to compromise justice at our expense. Lawmakers continue to play politics as if the lives and communities and futures at stake are no more than poker chips in the hands of lawmakers to be bargained with and bet in a game of chance.
Juvenile Life Without Parole is unconstitutional. Mandatory sentences for juveniles, that do not take into account juvenile disposition, is unconstitutional. Treating a child as an adult and punishing him/her as an adult is immoral. The law has to change. Lawmakers don't have a choice. The law and the constitution stands. If lawmakers continue to ignore the law and its citizens, citizens will use their right to vote to put into place those who values communities, this nation and the law.
COLORADO COURT OF APPEALS 2015COA14
Court of Appeals No. 12CA0066 Arapahoe County District Court No. 98CR2096
Honorable Marilyn Leonard Antrim, Judge
- The People concede that the Supreme Court’s decision in Miller applies retroactively to defendant’s sentence and that defendant properly preserved for appellate review his challenge to the mandatory life without parole sentence. For purposes of this case, the majority accepts the People’s concession as to the retroactive application of Miller.
- Id. at __, 132 S. Ct. at 2465. Employing an analysis similar to that in Graham, the Court held that the Eighth Amendment “forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders,” including those convicted of homicide crimes. Id. at __, 132 S. Ct. at 2469 (emphasis added). The Court again recognized that juveniles are different from adults, and held that “[s]uch a [mandatory] scheme prevents those meting out punishment from considering a juvenile’s ‘lessened culpability’ and greater ‘capacity for change.’” Id. at __, 132 S. Ct. at 2460
- Further, although the Banks division interpreted these statutes to indicate the “intent to impose the most serious penalty that is constitutionally permissible for such offenders,” ¶ 128, we construe this statement as conflicting with the reasoning and the spirit of Roper, Graham, and Miller. Miller, in particular, stressed the potential unfairness and inappropriateness of imposing identical mandatory penalties on juveniles possessing markedly different characteristics from one another and having participated in an offense to significantly different degrees.3 Miller, 567 U.S. at __, 132 S. Ct. at 2467 (“Such mandatory penalties, by their nature, preclude a sentencer from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it.”).
- We recognize that this is an area for legislative action, but pending legislative action, it is incumbent on us to provide our interpretation of the most appropriate remedy to implement Miller.4 Due to our concerns with the imposition of another mandatory sentencing scheme adopted by the divisions in Banks and Gutierrez-Ruiz, we have determined to adhere to the following approach (also considered by the division in Tate) and remand to the trial court for an individualized sentencing determination based on the factors elucidated in Miller.
- Provided that an individualized sentencing determination is made in accordance with the factors in Miller, on remand the trial court may re-impose the life sentence without parole, or it may impose a life sentence with a possibility of parole after a specified number of years, or a sentence that it determines is appropriate for this defendant. Although an open-ended sentencing approach provides little guidance for the minimum sentence that must be imposed, in making this sentencing determination the trial court should consider (1) the presumptive range that applies to the next lowest level felony: a class 2 offense with a presumptive range of twelve to twenty-four years, plus (2) the effect on the sentence of any applicable extraordinary aggravating factors as provided in section 18-1.3-401(8).
- First, although I authored the majority opinion in People v. Valles, 2013 COA 84, ¶ 74, __ P.3d __, __, I now believe that the best remedy to implement the holding in Miller is a remand to the trial court for an individualized sentencing hearing. Second, I explain why, notwithstanding the People’s concession, I believe Miller applies retroactively. Third, I emphasize that on remand, the trial court should consider whether Wilder’s aggregate 144-year sentence for his class 2 convictions is unconstitutional in light of the holdings in People v. Rainer, 2013 COA 51, ¶ 69, __ P.3d __, __(cert granted Dec. 22, 2014); People v. Lucero, 2013 COA 53, ¶ 2, __ P.3d __, __ (cert granted Dec. 22, 2014); and People v. Lehmkuhl, 2013 COA 98, ¶ 13, __ P.3d __, __ (cert granted Dec. 22, 2014).