Fines As An Alternative To Incarceration

Colorado, like almost all American jurisdictions, makes heavy use of small fines for petty criminal offenses, but includes fines almost as an afterthought, if at all, as the sanction for more serious offenses and has the option to impose many months or years of incarceration as a sentence even in the case of offenses that are usually disposed of only with a fine such as municipal ordinance violations and more serious traffic offenses.

As the Denver Daily News explains:

The fine for using a prostitute would be raised up to $10,000 under a bill that passed out of the Senate yesterday. The minimum fine for prostitution-related offenses would be raised to $5,000. The current fine for prostitution-related offenses can currently be under $100. Additionally, the bill would create “john schools” that first-time offenders could attend to get a deferred judgment. The scared straight-type program would educate first-time offenders on the harrowing effects of prostitution. The bill passed on a 32-2 vote and now goes to the House.

While sentences of incarceration produce big costs for taxpayers, fines raise revenues. Moreover, the maximum sentence of incarceration for an offense is generally much more severe in terms of economic impact than the related fine.

For example, a judge can impose a sentence of eighteen months of imprisonment for a class one misdemeanor, or a fine of $5,000. But, an eighteen month sentence of imprisonment would deprive the person sentenced of eighteen months of income in a state where the median income in a single person household is $52,430 in Colorado in 2010, depriving that median individual of more than $75,000 of income, in addition to considerable lost future income because the incarcerated individual is very likely to be unemployed for a substantial period of time upon release, and economic harm associated with involuntarily breaking their residential or automotive lease or default on their mortgage and car payments, etc. Even for someone earning only a far below median wage and netting out costs of room and board that are provided in jail, eighteen months of incarceration has far more economic impact than a $5,000 fine for a large share of all convicted criminal defendants.

Similarly, a judge can impose a sentence of a year in jail for a class two misdemeanor, but can impose of fine of no more than $1,000, and can impose a sentence of six months in jail for a class three misdemeanor, but can impose a fine of only $750.

The amounts of the fine somewhat understate the situation, because a variety of courts costs and fees apply when an individual is convicted of a crime, and there are also costs for a privately retained criminal defense attorney (if any), and the possibility of a restitution award. But, the general observation holds true and restitution awards are generally far narrower than the compensatory element of a civil tort judgment.

Of course, one of the reasons that we ended up with this kind of statutory framework is that a large share of criminal defendants in the United States are indigent or near indigent (something that can be estimated by the large percentage of criminal defendants who avail themselves of the services of the public defender), and that when imposed together with incarceration, the defendant has little or no means of generating income to pay it. Imposing fines that can never be paid is pointless and makes it harder to reintegrate the defendant into the community after the defendant is released. Indeed, one of the rules of thumb in the law is that legislators and judges and regulators tend to punish offenses committed by defendants without the financial wherewithal to make those they harm whole with incarceration and tend to punish offenses committed by defendants with an ability to pay with civil judgments and fines.

But, not all criminal defendants are indigent. One of the reasons that a large fine for people who purchase the services of prostitutes is attractive to legislators is that this is a class of criminal defendants who often do have the financial means to pay these fines. Many traffic, vice and white collar criminal defendants, generally, have a substantial ability to pay criminal fines. And, some minority of everyday crimes, especially misdemeanors and less serious felonies, are likewise committed by individuals with an ability to pay substantial fines for whom a sentence of incarceration would be an intense economic burden.  Large fines also make the option of prosecuting criminal cases against corporate defendants more attractive.

The predominant punishment in Germany and many Scandinavian countries for what would be serious misdemeanors or minor felonies in the United States is a "day fine" equal to one day's average income in some recent time period for the defendant times the number of days of fines imposed, in lieu of a maximum term of incarceration of the same length. Defaults result in imprisonment for the number of day-fine days of fines not paid. This keeps the defendant in the community, employed, with an incentive to work more to pay off the fine and shed the burden sooner, and without imposing significant administration costs on the public and without disproportionately punishing low income defendants. Part of what makes that system work is the fact t hat these countries don't have the kind of "underclass" of persistently poor people who regularly get caught up in their criminal justice system that we do in the United States. But, there is still surely a class of offenses in the United States for which a day-fine would be a useful criminal justice option.

This isn't to say that I support this Johns bill just passed by the State Senate. The policy case for criminalizing prostitution between consenting adults at all is weak, and many our world peers tolerate some form of legalized prostitution. In my view, taxing and regulating vice is generally preferrable to using the criminal law to prohibit it and trying to enforce that law.

But, while I don't support increasing penalties for adult prostitution, period, the approach of imposing a high fine for an offense in a situation where there is a realistic possibility that criminal defendants will be able to pay it, rather than incarceration, is an option that has much wider applicability.

Similarly, in cases where the existing fines are the predominant form of punishment for a crime and are adequate to the task, for example, for many traffic offenses that carry criminal penalties, ordinance violations, petty offenses and minor misdemeanors, removing the possibility of a sentence of incarceration would be desirable, because it would lower the stakes of proceeding, reduce the possibility of abuses of judicial discretion in sentencing, elminate the constitutional requirement that counsel be provided at public expense in the proceeding, and have little impact on the day to day outcomes of the criminal justice system in these areas. Where an offense is such that arrest power and brief periods of incarceration are helpful in enforcing the law (e.g. public drunkeness or disturbing the peace), a maximum period of incarceration of a few days, as opposed to many months, might be attached to a significant fine.

READ MORE - Fines As An Alternative To Incarceration

Intensive Supervision Adult Probation in Colorado

A Denver Post story last Sunday noted that ten adult men on probation in Colorado have been charged with murder or attempted murder in the last nine months. Five of them were in adult intensive supervision probation, one was in sex offender intensive supervision probation, three were on ordinary adult probation (one for burglary, one for gang related burglary, and one for domestic violence and in each case producing an attempted murder rather than a successful one). Many of them were in violation of prrobation conditions but faced no consequences for their violations. The probation department is at 90% of authorized strength.

because they had been recognized as relatively high risk (and at least one of the ten who was not on intensive probation was guilty of attempted murder, but was not successful in completing his crime).

Is the program worth it? As their editorial today notes, this program is much less expensive than incarceration. But, the highest risk individuals on probation may belong in prison.

Felonies By Probationers

From a public safety perspective, the biggest concern is that probationers commit new felonies, particuarly serious new felonies. How common is this?

The number of felonies in 2010 by program participants divided by the program size is as follows:

Intensive Juvenile 44/452 (9.7%)
Intensive Adult 79/1,408 (5.6%)
Intensive Female 10/262 (3.8%)
Juvenile (ordinary) 135/5,946 (2.3%)
Intensive Sex Offender 22/1,301 (1.7%)
Adult (ordinary) 570/41,107 (1.4%)
Private Non-Drunk Driving 65/9,067 (0.7%)
State Monitored Drunk Driving 41/11,448 (0.4%)
Private Drunk Driving 34/14,126 (0.2%)

Total: 1,000/85,142 (1.2%)

People on probation commit about 3% of all felonies in the State of Colorado and make up about 1.7% of the state's population including children. Thus, overall, probationers (who are much more likely to be adults and much more likely to be non-elderly males) aren't particularly high risk as a whole compared to demographically similar non-probationers, particularly when the offense by high risk probationers are removed from the total. But, a subset of probationers, adult men in intensive supervision probation who make up about 3% of the total probation caseload, do appear to pose a considerably high risk to the general public.

Offenders who commit felonies while on probation are subject to sentences of at least the midpoint of the presumption range for the offense, and up to twice as much as the presumptive maximum for that offense, Section 18-1.3-401(8)(a)(III), Colorado Revised Statutes, in addition to having their probation revoked and facing a sentence of incarceration on the original crime. So, these offenses are committed despite an enhanced deterrent incentive not to commit them relative to an ordinary individual.

All of the murders and many of the attempted murders were committed by adults in the intensive adult and intensive sex offender program (6 out of 101 felonies compared to 4 out of the 570 felonies committed by ordinary adult probationers), suggesting that in addition to having a much higher felony termination rate than other probationers, that these offenders also commit, on average, more serious felonies than other probationers who have their probation revoked for felonies.

Policy Implications

This may mean that these high risk individuals simply need to receive even more intensive supervision than they already receive, or it may mean that they would be better incarcerated. Given the very high likelihood that an incarcerated felon will commit a new felony after being released, it isn't obvious that the public is safer with incarceration than it is with probation in intensive supervision cases. But, it may very well be that the public would be better protected by incarceration in this subset of cases.

More generally, if the reason to prefer probation to incarceration is that it reduces the risk that a convicted felon is less likely to commit a felony that harms a member of the general public, and to reduce the severity of the felonies that are committed by such people, it may make sense to put more of the high risk men who receive intensive supervision when on probation in prison, and to allow more low risk individuals to receive probation sentences.

In particular, many women, white collar offenders, and vice offenders in our prisons who aren't part of criminal gangs or organized crime enterprises may pose a lower risk to the general public than some of the more serious male "blue collar crime" offenders who receive probation in the current system. Even if the lower risk offenders do commit new felonies, these offenders are unlikely to commit the violent felonies that the public is most concerned about preventing.

It is also worth examining whether probation is too often imposed for minor offenses where the benefits resulting from the supervision element of the sentence is slight, because probation officers are spread so thin for low risk offenders. For example, it isn't obvious that the system has sufficient resources to adequately sanction the large number of offenders who abscond or commit technical violations in a consistent manner, or that even the minor probationers who do abscond or commit technical violations really do present a serious threat.

Perhaps the state needs an option in many cases that produce probation sentences today of imposing a significant fine and a sentence of "unsupervised probation" as all or part of the probation period for minor offenders, which is revoked only for new felonies or misdemeanors or non-payment of fines, which qualifies the individual for an enhanced sentence on the new offense and a sentence of incarceration on the old offense, if a new offense is committed within a certain time period, in addition to a fine, while not actually having the relatively elaborate conditions of probation with many opportunities for technical violations and absconding through mere flakiness, and the supervision costs, that are present in the typical probatioon case.

How common is probation?

At the end of the 2010 fiscal year, there were 3,423 people in an intensive supervision probation program in Colorado's state courts: 1,408 in the program for adult men, 1,301 in the program for sex offenders, 262 in a program for women, and 452 in a program for juveniles.

Other kinds of probation are much more common. There were 41,107 adults on regular probation, 5,946 on regular juvenile probation, 11,448 on state monitored probation for drunk driving offenses, 9,067 on private probation for non-drunk driving offenses, and 14,126 on private probation for drunk driving offenses.

The 41,107 adults on regular probation were further broken down as: 901 new probationers awaiting risk classification, 4,166 maximum risk, 10,173 medium risk, 8,911 miniumum risk, 5,758 adminstrative, 3,328 community corrections, 4,875 domestic violence, 1,137 sex offender, and 1,858 interstate transfers.

The 5,946 juveniles on regular probation were further broken down as: 176 new probationers awaiting risk classification, 920 (15%) maximum risk, 1,930 (32%) medium risk, 1,685 (28%) miniumum risk, 779 (13%) administrative, 20 in community corrections, 342 sex offenders, and 94 interstate transfers.

In all, there were 85,142 people on probation in Colorado on June 30, 2010. Probation includes community corrections.

Probation is a common sanction following a criminal conviction, indeed, it is the modal punishment for many offenses. There were 10,460 new felony probation sentences, 14,851 new misdemeanor probation sentences, 228 new petty misdemeanor probation sentences, 103 new traffic probation sentences, and 694 other new probation sentences (ordinance violations or lack of coding information) in the 2010 fiscal year. In all 26,336 new probation sentences were imposed in the 2010 fiscal year. Of completed probation sentences, 38% were for a year or less, 36% were for one to two years, 15% were for two to three years, and 11% were for more than three years.

There were 36,993 new felony offense prosecutions in 2010 in Colorado, 11,640 new juvenile delinquency prosecutions,, 69,695 new misdemeanor prosecutions (excluding traffic cases and drunk driving), and 28,429 drunk driving prosecutions.

How Often Is Probation Successfully Completed And Why Do Offenders Fail?

Of all people whose probation ended in 2010, 67% of adult regular probation sentences were completed successfully (including the 11% of the total who complete a community corrections sentence successfully), 15% of those on probation had their probation revoked for technical violation or a new crime while on probation, 13% absconded ("Absconded refers to probationers who became fugitives and are no longer compliant with probation supervision."), 3% were deported, 1% died, and 1% of cases were cloused out for administrative reasons. Of the 3,144 adult probation revocations in 2010, 570 (18%) were for new felonies, 756 (24%) were for new misdemeanors, and 1,818 (58%) were for technical violations of probation terms.

Of the 5,906 non-drunk driving private probation sentences terminated each year (a lower risk population), 4,590 are successful (78%), 614 are revoked (10%) (65 new felonies (11%), 146 new misdemeanors (24%), 66% technical violations) and 702 abscond (12%). For private probation related to drunk driving offenses, 82% complete their sentence successfully, 9% have their probation revoked (34 new felonies (4%), 288 new misdemeanors (31%), and 65% technical violations), and 9% abscond.

Among state monitored drunk driving probation cases, 73% complete successfully, 16% have their probation revoked (1,411) (41 which is 4% for new felonies, 136 which is 10% for new misdemeanors, and 87% for technical violations), and 11% abscond.

For regular juvenile probation, 73% successfully complete their sentences, 22% have probation revoked, and 5% abscond. Of the 989 juvenile revocations, 135 (14%) are for a new felony, 183 (18%) are for a new misdemeanor, and the remaining 68% are for technical violations.

In the adult intensive supervision program, 66% are successful terminations, 26% (317) are revoked, and 9% (108) abscond. Of the 317 revocations, 79 (25%) are for new felonies, 51 (16%) are for new misdemeanors, and 59% are for technical violations.

For sex offenders in intensive supervision, there are 22 new felonies (12% of revocations), 8 new misdemeanors (4% of revocations), and 158 revocations for technical violations (84%). Only 39% of sex offenders in intensive supervision successfully complete the program, while 53% have their probation revoked and 8% abscond.

In the female intensive supervision program, 69% of cases are successful, 22% (32) are revoked (10 which is 31% for new felonies, 3 which is 9% for new misdemeanors and 59% for technical violations), and 8% abscond.

For juveniles under intensive supervision, 46% are successful, 49% (232) have probation revoked, and 5% abscond. 44 juvenile intensive supervision revocations (19%) are for new felonies, 48 (21%) are for new misdemeanors and 60% are for technical violations.

After probation terms are completed there is considerable recidivism, although not nearly as much as that for offenders who complete prison terms.

Miscellaneous Background

When you are convicted of a crime in Colorado, a judge can fine you, a judge can sentence you to a period of incarceration, or a judge can put you on probation subject to a wide variety of conditions (there are a few other options as well, like community corrections and deferred judgments).

There are three main classes of people who are out in the community while involved in the criminal justice process. People on bond awaiting conviction, people on probation, and people on parole. The first two are supervised by the judicial branch, the last is supervised by the executive branch's parole system. (Incarceration prior to trial or after conviction for a misdemeanor is handled by the executive branch of county government, while incarceration after conviction for a felony is handled by the executive branch of state government together with parole). The probation department also does pre-sentence investigation of criminal defendants.

READ MORE - Intensive Supervision Adult Probation in Colorado

Daylight savings time and other annoyances

* So, we're back on daylight savings time, which takes more of the year than standard time. Daylight savings time is like the ultimate popular kid stunt: "I can make the entire country pretend its an hour ealier than it really is, just because I can get everyone to agree with me." And, of course, once it takes off, you really have no choice but to go along. Still, losing an hour in the spring is brutal.

* Washington Park in Denver has a special magical glow that keeps it attractive regardless of what is going on in the outside world. But, I'm beginning to think that it may be a force field instead. I've been trying to stop paying $17 a month for free TV by setting up an antenna. Before I started getting basic cable, I'd tried it from a powered antenna inside my living room and get one or two channels. This weekend, after going to the trouble of setting a powered antenna up on the highest point on my roof, I got absolutely zero reception. Needless to say, I am not very impressed with the digital broadcast TV revolution, although it may simply be that Wash Park is as much of a TV dead zone as it has a reputation for being a cell phone dead zone.

* Another of the great mysteries of life is why old computers accumulate problems. They produce stray, seemingly meaningless error messages. They slow down. Virus scans and disk defragmentation stops helping. It might be possible to remove accumulated programs, but who knows what it is safe to remove. It reaches the point where you'd like to just run the restore disks and start over, but of course, by that point you've invested money in programs and misplaced the restore disks and the original programs with their access codes.

* Then, of course, there are the dreaded smart phones. I held out for the longest time. But, finally, about three years ago, I had to give in because it was expected that you have access to e-mail at all times for work. But, every now and then, you have to change phones, and the switch is painful. It takes weeks to get it back to the unsteady compromise that you have with the machine before you switched, when you knew how to work what you needed and it all worked smoothly.

* My daughter embarks on the brave new world of Home Economics (or whatever they call it these days), today. Rumor has it that the cooking agenda is full of things that we would never actually cook in our own house for want of nutritional value, but such is life. Hello Hamburger Helper(R)!

* The 8.9 magnitude Earthquake which initially seems to have spared Japan too much damage, now seems to have actually inflicted a Katrina class blow as more news reaches the world.

* The situation in Libya is getting ugly, as Kaddafi and the rebels civil war. (On the bright side, the monarch of Oman appears to be ready to convert from an absolute to a constitutional monarchy in the next thirty days.)

* Japanese manga and anime make frequent use of images and scenes that draw on the characters of the real story, but rather than being blubs are just riffs on the concepts that aren't part of the story itself, something quite rare in American media (as is the habit of having the author reserving space to directly address the audience). Is there a general name for these extraneous sketches?

* Why do the Denver Assessor's office have a nice online interface for its records, while the Denver Clerk and Recorder's office, which is just as automated, does not have its grantor-grantee index and file images available online? Both are public records. I suspect it is so that the clerk's office can make us pay 25 cents a page for copies and make title companies pay for bulk downloads to escape that problem. But, I'd surely favor any candidate in the current clerk and recorder's race who would promise to put the grantor-grantee index online.

* Some days, you think humanity is on the right track. Some days, you read the news from Cleveland, Texas (mass child molestation of eleven year old in a small town capture on cell phone video), and you are rather less hopeful. Ironically, the crime of taking the video will probably garner stiffer sentences than the underlying crime itself.

* For reasons mysterious to me, a wave of male enhancement product spam is deluging this blog at the moment, I am trying to review new comments an delete the bad ones a rapidly as I can. I still don't see why it is so hard for regulators to determine who the vendors being advertised are, trace them with sample transactions, and use the vendor records to shut these people down. It really is just a handful of industries that leave the bulk of them, and apparently there are not that many spam purveyors out there comprising the bulk of the traffic. They money trail ought to be auditable. Maybe all those SEC employees who were using government computers to watch porn could do it as a form of community service.

* We are about to celebrate Saint Patrick's Day (indeed, many people did this past weekend), after the man famous for converting the pagans of Ireland to Catholicism. Garrison Keillor's show this weekend (part of the show, apparently originally from 1997 are here) explained why this makes quite a bit more sense than celebrating Saint Olaf's day, something riotously funny to a fellow ex-Lutheran. But, in an era of anti-imperialism and distrust of institutions, why not celebrate Saint Francis of Assisi Day instead? (He has a Saint's Day on October 4, but it isn't all that big a deal.) Perhaps Saint Francis Day could be substituted for ever more controversial Columbus Day (October 12), as a day of Italian-American pride.

* The newspaper comics this weekend also posed the ultimate elementary school boy query for March: In a battle between ancient Romans (associated with the Ides of March) and Lepricauns (associated with Saint Patrick's Day) who would win? The particularly frightening aspect of this query is that there is apparently now a television show devoted to such questions, asking in a recent episode with quasi-scientific rigor, who would win in a fight between the Musketeers and the Manchu warriors (whose ancestors apparently have formed an immigrant community to the north of Denver).

* Also, in hopeful news, the Denver Post has reiterated its support for abolishing or narrowing the scope of the death penalty in Colorado. Narrowing the scope of first degree murder to exclude neo-natal homicide by women in the throes of childbirth and felony murder that does not involve triggermen or people who have solicited a murder would be a good start, and if applied retroactively, would improve the state of the state budget and greatly reduce the ranks of juveniles serving life without parole in the state.

READ MORE - Daylight savings time and other annoyances

Friday Links of Interest

* Colorado's incarceration rate for women (93 per 100,000 population) is the third highest in the United States after Oklahoma (134 per 100,000), and Texas (98 per 100,000). The national average is 69 per 100,000. "In 2004, [Oklahoma] imprisoned more than 10 times as many women per capita as Massachusetts or Rhode Island."

* Microsoft's customer support website chronicles the ire of people who have had Bing hijack their systems.

* "[H]ow many offenders sentenced under the old 100-1 crack guidelines (and the amended version applicable from 2007 to 2010) would benefit from retroactive application of the new 18-1 crack guidelines that the passage of the Fair Sentencing Act produced"?

12,835 offenders sentenced between October 1, 1991, and September 30, 2009 (fiscal years 1992 through 2009), would be eligible to receive a reduced sentence if [the new sentencing guideline] were made retroactive. If these offenders were to receive reduced sentences . . . the dates on which they would be released would span more than thirty years....

Based on [additional] assumptions, the average sentence reduction for all impacted offenders with sufficient information to perform this analysis would be 22.7 percent (or 37 months, from 163 months to 126 months). Table 6 shows that 7,612 offenders (76.9%) would receive a sentence reduction of 48 months or less. Conversely, 286 offenders (2.9%) would receive a sentence reduction of more than 10 years.

A more modest adjustment to the crack sentencing guidelines in 2007 was applied retroactively. "The 2007 reduction benefited over 15,000 crack prisoners, though the amount of sentence reduction was only around 2 years of imprisonment."

The federal corrections budget would be reduced by about $1 billion if the sentencing guideline change mandated by the Fair Sentencing Act was made retroactive.

* Mohamad Hammoud was the first man convicted of charges including material support for terrorism after 9/11 (he was the first man charged under a 1996 law that makes it illegal to give money to designated terror groups and was found guilty and sentenced shortly after 9/11). He was sentenced to 155-years in prison "for smuggling cigarettes and sending $3,500 of the profits to Hezbollah." This was reduced this past January by Judge Graham Mullen on the grounds that this was "grossly disproportionate." But, the new sentence for the man who has served about ten years in prison so far is 30 years in prison after the original sentence was reversed on appeal. Thus, "the 37-year-old from Lebanon will spend an additional two decades in prison, then likely be deported." Hammoud plans to appeal the new sentence as well.

His attorneys wanted Hammoud to walk out of the courtroom with a sentence of the more than 10 years he already served. . . They contend he sent the money to a wing of Hezbollah that helps provide Middle Eastern communities with clean water and good housing, not the military wing labeled terrorists by the United States government for numerous attacks on Israel. . . . defense attorneys brought up more than a dozen cases in which people got sentences much shorter than Hammoud, including sentences of only a few decades for defendants that provided actual weapons and hundreds of thousands of dollars to terrorist organizations. "This is a case where people get seven years, eight years," Hammoud's attorney Stanley Cohen said.

From here.

* Twin studies, surprisingly, show a strong hereditary component to adolescent crime victimization:

[G]enetic factors explained a surprisingly significant 40 to 45 percent of the variance in adolescent victimization among the twins, while non-shared environments (those environments that are not the same between siblings) explained the remaining variance. But among adolescents who were victimized repeatedly, the effect of genetic factors accounted for a whopping 64 percent of the variance.

The study's author surmises that "genetically influenced traits such as low self control affect delinquent behavior, and delinquents, particularly violent ones, tend to associate with antisocial peers."

* Low prices of consumer electronics in the U.K. have caused criminals to shift from committing burglaries to muggings where small, high value items like iPods and laptop computers are stolen.

* High IQ people of modest means are considerably less likely to get higher education in Minnesota than in Sweden, while low IQ people from affluent families were more likely to get higher education in Minnesota than in Sweden. Higher education is free in Sweden to students with good grades and test scores, but money is still a barrier to these students in the United States.

Notably, Harvard and several other Ivy League schools have instituted sliding scale tuition arrangements so that they can continue to admit the most qualified applicants regardless of means. For example, Harvard limits tuition to 10% of the first $180,000 of family income and has ceased including student loans in undergraduate financial aid packages.

* Tree ring data from Mexico released last year showed that a "large ancient drought previously confirmed for the Southwest of the United States is shown to have extended into central Mexico (1149-1167 AD)."

[It] also provides the first independent confirmation of the so-called Terminal Classic drought, a megadrought some anthropologists relate to the collapse of the Mayan civilization. This decades-long dry period had been previously determined by analysis of lake and basin sediments in other areas of Mexico and the Caribbean. . . [The data] narrowed the event's timing to 897-922 AD and confirmed that it had a wider geographical impact than previously thought, extending into the highlands of Central Mexico, where other classic period cultures were located.

This parallels recent 2500 years of paleoclimate data from Europe that also shows a strong link between the major upheaval in European civilization in the last couple of thousand years and climate trends.

At times of social stability and prosperity, like the rise of the Roman Empire between 300 B.C.E. and 200 C.E., Europe experienced warm, wet summers ideal for agriculture. Similar conditions accompanied the peak years of medieval Europe between 1000 C.E. and 1200 C.E. . . .

In the 3rd century C.E. . . . extended droughts matched the timing of barbarian invasions and political turmoil. Around 1300 C.E., on the other hand, a cold snap combined with wetter summers coincides with widespread famines and plague that wiped out nearly half of Europe's population by 1347. . . . In eras of prosperity, more trees were cut down for building and fuel, yielding more samples in the archaeological record. At other times, like the years after the Black Death and the so-called Migration Period between 300 C.E. and 600 C.E. when the Roman Empire was overwhelmed by tribes pushing in from the east, the number of wood samples dwindles to nearly nothing.

Krugman and Brad DeLong, meanwhile, have recently noted an interesting article from 1970 on the connection between the institutions of slavery and serfdom in Europe and the Black Death. Climate data may elucidate some of the unanswered questions from that analysis.

READ MORE - Friday Links of Interest

Does Recidivist Sentencing Work?

Making the length of a prison sentence conditional on an individual’s offense history is shown to be a powerful way of preventing crime. Under a law adopted in the Netherlands in 2001, prolific offenders could be sentenced to a prison term that was some ten times longer than usual. We exploit quasi-experimental variation in the moment of introduction and the frequency of application across 12 urban areas to identify the effect. We find the sentence enhancements to have dramatically reduced theft rates. The size of the crime-reducing effect is found to be subject to sharply diminishing returns.

From the abstract to Preventing Crime Through Selective Incapacitation by Ben Vollaard.

Some highlights:

[J]udges almost exclusively sentenced drug-using, older individuals under the law for whom there was thought to be no hope of preventing high-rate offending by any other means than incapacitation. Most of the convicted offenders were not able to maintain a normal life style. They were out of work and did not have stable housing. They committed theft for a living, collecting a daily income of some 50 to 100 euro ($70-130) to be able to maintain their habit, which implies stealing property valuing some 300 to 600 euro ($400-800) on a daily basis. By 2001, many of these highly prolific offenders were aged 40 or over: they had fallen victim of the heroin epidemic that swept Europe back in the 1980s. The offenders spent some three to four months in prison each year in absence of the new law, and some had as many as 300 offenses on their criminal record. On average, offenders had been convicted 31 times prior to being sentenced under the habitual offender law. The enhanced prison sentence was not only meant to reduce crime through incapacitation but to provide a window for coercive treatment as well. Incarceration was often combined with drug treatment and other rehabilitative services, such as social skills training. Evaluations of the law suggest the treatment programs had little effect on recidivism. . . .

The offense data show that 85 percent of all offenses known to the police were committed within the urban area an offender has been assigned to. The other 15 percent of offenses were mostly committed in smaller communities directly bordering the urban area. . . .

[T]he rate of theft is some 30 to 40 percent lower as a result of selective incapacitation of prolific offenders. The size of the drop in crime corresponds with the results of some back-of-the-envelope calculations. If 1,200 offenders are responsible for 70 percent of crime, as we argued above, then the close to 700 offenders serving time under the law by mid-2007 are responsible for 40 percent of crime. . . . The crime-reducing effect of the law is smaller than this percentage share, however, since some of the offenders would have been doing time also in absence of the law. Assuming 8 additional months of incarceration per year as a result of the law, the drop in crime can be put at some 30 percent, which is close to what we find. . . . under the assumption that the affected offenders spend 8 additional months in prison per year, the law prevents some 80 thefts from car and 9 domestic burglaries annually per long term incapacitated offender. That implies that the costs per crime prevented are equal to some 600 euros. In other words, if the social costs of a domestic burglary and a theft from car are higher than 600 euros, then the policy is welfare improving. Estimates of the costs of crime are surrounded by controversy. Ex post approaches estimate the cost of crime that has already occurred to identifiable victims. Based on jury awards, Roman (2009) estimates the average costs of a burglary to be $4,444 (3,300 euro). Accounting for all of the costs that are known to be related to crime, including damage and the costs of use of the criminal justice system, the Home Office produces a somewhat higher estimate of the costs of a burglary of 4,600 euro ($6,000) per incident. A separate estimate for the cost of a theft from car is only available from the Home Office study, which puts it at 1,200 euro ($1,600) per incident. . . .

A habitual offender law adopted in the Netherlands in 2001 allowed for a two to three year prison sentence for offenders with ten or more offenses on their criminal record. Although the group of offenders sentenced under the law accounted for only 5 percent of the prison population six years after its introduction, the sentencing policy lowered the rate of burglary and theft from car by an estimated 40 percent through the incapacitation effect alone. The estimated impact of the law is large, but in line with self-reported crime. In addition, police counts of active prolific offenders are found to go down proportionally with the number of prolific offenders serving extra time in prison as a result of the law. . . .

Even for this highly selective sentencing policy that only affected 1,400 offenders in the period 2001-2007 we find evidence for rapidly decreasing returns to scale. The marginal crime-reducing effect of incapacitating another prolific offender declines by more than half from the lowest to the highest rate of application of the law. The benefit-cost ratio drops sharply when more offenders are serving time under the habitual offender law. The social returns to selective incarceration remain positive over the whole range of application of the policy, however. . . .

The incapacitation effect may be particularly large in the case of the Netherlands as the habitual offender law primarily affected offenders that were addicted to drugs, heroin in particular. These offenders tend to have an age-crime curve that is flatter than that of other groups of offenders – even other prolific offenders. Possible negative effects of longer prison sentences on the life of offenders such as disruption of employment, relationships and housing were limited as most of the affected offenders were out of work and did not have stable housing.

The Dutch policy of selective incapacitation started from a low base. The rate of incarceration in the Netherlands around 2001 was similar to the rate in the beginning of the 1970s in the US, for instance. Enhancing prison sentences of a few weeks or months to three years is likely to have a greater payoff in terms of preventing crime than enhancing prison sentences that are already many years long. To compare: an enhanced prison sentence for burglary of 2 to 3 years based on the Dutch habitual offender law is comparable to the default sentence for burglary in the United States. Our finding that the habitual offender law adopted in the Netherlands had a large incapacitation effect should therefore not be interpreted as evidence that all policies of selective incapacitation are likely to have a similarly favorable cost-benefit ratio. Given the rapidly diminishing returns to incarceration, the high costs of the enhanced prison sentences may soon exceed the benefits of crime prevented.

The delicacy with which the Dutch approach a very modest habitual offender law that applies only to those with ten previous offenses (although many of those would be misdemeanors under U.S. law and generally not within habitual offender provisions except under laws that allow aggravation of multiple theft amounts into a single felony theft prosecution), is itself fascinating. Habitual non-violent felony property crime defendants in Colorado and most U.S. states receive sentences many times as long.

Also, the fact that someone in the Dutch public policy process is even seriously trying to quantify the cost-benefit ratio of incarcerating habitual thieves for long periods of time, and considering even the economic impact of the sentence on the thieves themselves, is itself interesting. So too is the fact that somebody in the Dutch criminal justice policy making world finds bicycle thefts, larcenies from cars, and non-violent burglaries of unoccupied dwellings worth of interest at all. By comparison, most American criminal justice policymakers are so interested in reducing violent crime that any other objective is virtually irrelevant.

Felony Sentencing In The United States

A link to the latest data on felony sentencing in the United State can be found here (almost no state or national level statistics are kept on misdemeanor sentencing apart from overall jail incarceration rates, records of court cases commenced, and sometimes a distinction between the share of those in jail who are awaiting trial and those who are actually convicted). This year's highlights:

* In 2006 an estimated 69% of all persons convicted of a felony in state courts were sentenced to a period of confinement--41% to state prison and 28% to local jails.
* State prison sentences averaged 4 years and 11 months in 2006.
* Men (83%) accounted for a larger percentage of persons convicted of a felony, compared to their percentage (49%) of the adult population.
* Most (94%) felony offenders sentenced in 2006 pleaded guilty.

Jury trial rates do not exceed 5% for any category of crimes other than serious violent crimes. Even 61% of murder convictions are the result of guilty pleas.

The average burglary sentence in the U.S. in 2006 was 44 months of incarceration where incarceration is imposed (median 24 months), and the average larceny sentence was 22 months (median 12 months) of incarceration where incarceration is imposed. Of course, many and probably most of those sentences don't involve recidivist offenders.

Life sentences are imposed in the U.S. in about 25% of murders, 5% of rapes, 1.5% of robberies, 0.8% of non-rape sexual assault cases, 0.6% of aggravated assaults, 0.4% of other violent crimes, and 0.1% of non-violent crimes for which incarceration in prison is imposed as a sentence.

Surprisingly, no fine is imposed in 55% or more of cases for every particular kind of felony. Overall, fines are not imposed 62% of the time.

Colorado Sentencing in 2009

In Colorado, there were 42 habitual offender commitments to prison in fiscal year 2009 (see page 23 of the pdf), compared to 26-66 per year in years since 2005. These included a 40 year sentence for forgery, a 25 year sentence for burglary, four cases with an average 36 year sentence for burglary, three theft sentences of an average of 18 years each, four for trespassing or criminal mischief for an average of 11 years each, a 6 year forgery sentence, a 6 year perjury sentence, and an 11 year trespassing/criminal mischief sentence. Three habitual offender sentences were for escape, fourteen were for violent or weapon related crimes, six were for drug crimes, and two were for a felony traffic offense. All but one of the 42 habitual offenders were men and the trigger for habitual offender sentencing is two or three prior felonies of the relevant type under each habitual offender statute (there are several). While these terms are long, they are far more lenient in most cases than under California's controversial three strikes law. The average Colorado prisoner serves about half their full sentence due to good time and other considerations.

About 3% of offenders in Colorado prisons were sentenced under habitual criminal statutes. In all there were 22,961 people in Colorado prisons as of June 30, 2009. Another 12,773 were on parole.

The "need assessments" of Colorado prisoners is always notable.

Educationally, just 1% of those admitted to prison had an associates degree or more education although about 11% have some college, while 37% lacked a high school diploma with 36% being at least functionally illiterates who needed adult basic education instruction, rather than high school level GED instruction which would be too advanced for them. About two-thirds of those with either a high school diploma or GED had a GED rather than a high school diploma. So, less than a quarter of Colorado prison inmates graduated from high school in the ordinary course. In Colorado as a whole, 11% lack a high school diploma or GED, 89% of the age 25+ population has at least a high school diploma or GED, 65% have at least some college, 43% have an associates degree or higher degree, and 33% have a bachelor's degree.

About 8% had an IQ of under 81. A moderate to severe mental health problem is an issue for 30%. A moderate to severe substance abuse problem is an issue for 79%. A moderate to severe medical problem is present in 15%. Sex offenders make up 11% with another 5% suspected of having sex offense histories who are not convicted. An absence of adequate skills to get a job is a factor for 42%. Mental health needs differed considerably based on gender. A moderate to severe mental health problem was an issue for 22% of men and 55% of women.

The DOC doesn't include crosstabs in its annual report or relate needs data to recidivism data, although some data along that line are collected in a separate report and here. Offenders with mental health issues are slightly more likely to lack of high school diploma or GED (31%-32% v. 28%), to lack job skills (94% v. 91%), to be sex offenders (22%-24% v. 18%), to have substance abuse problems (80%-83% v. 78%) and to have anger issues (40%-41% v. 39%) than other inmates. They are much more likely to have medical problems (25%-28% depending on severity v. 16%), to have IQ below 81 (about 8% v. 4%), and to have suicidality issues (about 21% to 30% depending on severity v. 9%). Only 30% of inmates without a substance abuse problem have a high school diploma and 24% have neither that nor a GED.

Some mental health data don't make much sense. Those who were classified as having mental health issues often had prior psychiatric hospitalization (18%-24% depending on severity) and out patient mental health treatment (42%-47% depending on severity), but among those not classified as having mental health issues, 5% had prior psychiatriic hospitalization and 27% had prior outpatient mental health treatment, suggesting significant underdiagnosis of mental health issues by the DOC. Among those with mental health issues 23%-34% had a history of psychotropic medications, but so did 4% of those not so classified. Notably, less than 1% of inmates with mental health issues had a prior not guilty by reason of insanity case.

The most common mental health conditions were drug addiction, depression, bipolar disorder, anxiety disorders, alcoholism, schitzophrenia and psychotic disorders, dsythmic disorders, "disorders usually diagnosed in childhood" like ADHD, and "sexual and gender identity disorders" 1%. In all 34% of disciplinary violations were attributed to the 25% of inmates classified as having mental health issues in the detailed study on the issue, and these inmates were much more likely to be in solitary confinement or "close" supervision than other inmmates (23%-24% v. 11%), despite generally similar offense severity.

The overall percentage of inmates with moderate to severe needs in some category other than job skills (which almost all inmates seem to lack) is probably in excess of 90%, and once job skills are considered is probably in excess of 95%.

The DOC also doesn't detail good time forfeitures or gang crime connections in its annual report, although it tracks both. About 7% of Colorado inmates are eligible for deportation upon release because they are not U.S. citizens. About 9% are foreign born (the same as the 9% of the general Colorado population that is foreign born foreign born), but the remainder are U.S. citizens not eligible for deportation. Colorado's inmates are 45% Anglo, 32% Hispanic, 20% African American, 3% Native American and 1% Asian. Colorado as a whole is 71% Anglo, 20% Hispanic, 4% African American, 1% Native American and 3% Asian.

For prisoners released in 2005 and for prisoners released in 2006, the three year return to prison rate was 53.2% (a little higher for men, a little lower for women). The largest proportions of returns to prison are for technical violations of parole. For example, looking at the cohort released in 2004, the percentage of the cohort commiting ofirst time technical violations or new crimes by number of years from release is as follows:

---------------New Crime----------Technical Violation
Year 1----------8.8%------------------24.1%
Year 2----------6.2%-------------------7.8%
Year 3----------3.6%-------------------1.9%
Year 4----------2.3%-------------------0.4%
Year 5----------1.8%-------------------0.3%

Even a 1.8% crime conviction rate per year is huge compared to the general population. But, inmates in Colorado prisons are highly atypical of the general population in a variety of "needs" categories as well as in having a history of having seriously violated the law. About 43%, however, will go five years from release from prison without a single technical violation forcing their return to prison or new crime, and about 77% will not be returned to prison for a new crime in that five year time period.

Recidivism rates are higher for those with moderate mental health issues than those with none or those with severe mental health issues.

The average annual cost of incarcerating an inmate in Colorado was $32,338 in fiscal year 2009. The state has 23 prisons. None of them was under 100% of capacity. Twelve were over 100% of capacity, in one case at 186% of capacity (Skyline Correctional Center). The state prison system employs more than 6,000 people full time. State prison populations did almost hold steady in 2009 (increasing by only 189 inmates), however, after many years of steady and rapid prison population growth due to both decreased admissions and increased releases. New crime convictions leading to prison sentences declined, while technical parole violations rose.

READ MORE - Does Recidivist Sentencing Work?

Still Waiting For Action On Juvie Pardons

In August of 2007, Colorado's Governor Bill Ritter convened a special panel to consider and advise him upon pardons for offenders who committed crimes as juveniles, with the focus of their deliberations being the forty-six juveniles in Colorado who are serving life without possiblity of parole sentences, and on fourteen and fifteen years olds charged as adults who would have been tried only in the more lenient juvenile justice system under current law.

Since those juvenile life without parole sentences were handed down, Colorado's General Assembly has revised the law that made those sentences possible in 2006, allowing parole consideration for new offenders who commit the same crimes after forty years. The General Assembly refrained from making the law retroactive, in part, out of the non-binding separation of powers consideration urged strongly by District Attorneys that correcting sentences already handed down is the perogative of the Governor who has the pardon power allowing him to do so.

Also, since those sentences were handed down the U.S. Supreme Court has ruled that people who commit crimes while under the age of eighteen are not eligible for the death penalty under the 8th Amendment, and in May of this year, the U.S. Supreme Court ruled in the case of Graham v. Florida that "It is unconstitutional to sentence a juvenile offender to life in prison without parole when the crime does not involve murder." The case in question involved a Florida sentence to life in prison without parole in a burglary aggravated by rape. Florida used life parole sentences for serious juvenile crimes other than murder frequently, something done in no other state in the Union to that extent.

Now Is The Time

Governor Ritter has a little more than two weeks left in office. But, the Colorado Juvenile Clemency Board has had more three years and three months since it was created to consider the issue. A year and a half has passed since I spoke with a representative of the Governor's office about the issue in the wake of news reporting about its deliberations. Yet, nothing has happened.

The Governor has issued a handful of pardons in his term, but none of consequence, and none in these high profile juvenile cases for which he convened a special panel to advise him.

Late December (typically in connection with Christmas or New Year's Day) is one of the traditional times for a Governor to issue pardons (Thanksgiving, the other traditional time, has come and gone).

Governors and Presidents tend to be particularly generous in granting pardons particularly when they are leaving office for good, as there are no political consequences for doing so and they are free to act on their consciences in a non-strategic way. There are no indications that Governor Ritter intends to seek higher office in the future, so this month is the end of the political line for him. Granting pardons also clears the deck of worthy cases deserving pardons so that subsequent holders of the office (in this case, Mayor Hickenlooper) don't have to take political heat for doing so.

Governer Ritter's Lens On Pardons

Individuals who look at the pardon decisions that Governor Ritter is faced with making at the close of his term usually point to several factors in his personal life before becoming Governor that have mixed implications.

On one hand, Governor Ritter is Roman Catholic, and the Catholic church, despite its reputation for conservatism on reproductive health issues, has also been a staunch and consistent advocate for mercy for those in prison facing the death penalty, to which the Roman Catholic Church is doctrinally opposed, and for those for whom reform is a possibility. (Note that opposition to the death penalty is a relatively recent development in the history of the Catholic church. The Pope presided over executions of condemned criminals in Vatican City as sovereign leader of the Holy See as recently as 1870, and the death penalty was legal but not used for the crime of assassinating the Pope in Vatican City until 1969.)

Governer Ritter is also a Democrat, and while he is probably more conservative than the median legislative Democrat in Congress, particularly on criminal justice and union issues, his political party has been at the forefront of the movement to turn away from draconian sentences in the criminal justice system, particularly for non-violent offenses and juvenile offenders. Governor Ritter has, with some reservations, assented to and signed many bills spearheaded by his Democratic colleagues in the General Assembly during his four year tenure as Governor that have implemented that vision in Colorado (and greatly reduced the corrections budget in the state as a result).

But, on the other hand, Governor Ritter is the former District Attorney for Denver, a position always associated with tough on crime attitudes, and ran for Governor as a death penalty supporter. In his post in Denver, Governor Ritter was a far cry from the controversial District Attorney Carol Chambers whose hard line approach to criminal prosecutions in Arapahoe County has made headlines and fostered criticism, but he was no softie either. Also, in his capacity as an advocate and person providing policy input for the state's district attorneys' in legislative battles in the state, he has always been adamant about taking the position that the Colorado General Assembly should not retroactively reduce sentences already imposed when it reduces those sentences prospectively. Sometimes this has been posed as an attitude about the separation of powers between a Governor's pardon power and the legislature's law making power. But, it also probably reflects a personal attitude that generally sentences that are legal when imposed should have a high level of finality.

The question in the next couple of weeks will be whether mercy or the hard line attitude of a former prosecutor will prevail in Governer Ritter's personal evaluation of the clemency and pardon requests he considers.

Who Are Colorado's Juvie Lifers?

To recap a little of what we know about those forty-six Colorado inmates:

• 1 of the 46 is a female.

• 57 percent committed their crimes at age 17.

• 22 percent were 16 when they committed their crimes.

• 17 percent were 15 when they committed their crimes.

• 4 percent (two of the juveniles) were 14 years old.

• 26 percent of those serving life sentences are black.

• 29 percent are white.

• Two-thirds of the convictions were for murder, and one-third were for felony murder, in which the juvenile did not personally kill anyone but played a role in a robbery or other dangerous felony in which an accomplice killed someone.

Considering The Crime

While Graham v. Florida does not, by its terms, extend to felony-murder cases (for which the U.S. Supreme Court has permitted the death penalty to be imposed upon adults who are not triggermen and do not solicit murders, despite categorically prohibiting the death penalty for non-murder crimes other than "crimes against the state" such as treason and espionage), the reasoning in that case together with the Colorado General Assembly's stance on the matter, certainly makes a strong moral case for commuting the sentences of the one-third of juveniles in Colorado serving life without parole sentences in felony-murder cases where they did not personally murder someone.

Simply put, someone who happens to be actively engaged in committing a serious crime that he does not anticipate will result in a death and has no personal role in carrying out a murder or ordering one, is not as culpable as someone who actually murders someone or orders someone to murder someone. Certainly, these individuals are guilty of the serious crime that they did intentionally involve themselves in, and certainly they exercised bad judgment in their choice of criminal accomplices. But, the statutes overreach when they equate they find that someone who set out to participate in a burglary where someone doesn't end up getting killed is so much less culpable than someone who participates in a burglary not expecting that someone would get killed and an intemperate accomplice actually does kill someone. A more serious sentence may be appropriate because a more serious outcome resulted from the collective course of action. But, it doesn't make sense to incarcerate a juvenile for life without possibility of parole when that juvenile's level of personal culpability isn't much different from that of juveniles who commit similar crimes where no one is killed who often aren't even eligible to be tried as adults under current law.

The natural thing for Governor Ritter to do would be to commute the sentences of those offenders to the same sentences that they could have received under existing Colorado, i.e. life with parole available after forty years or to the still long sentence (e.g. twenty-four years) that would have been available had they been convicted of the lesser offenses such as conspiracy to commit murder or aggravated robbery, rather than felony-murder, which involve heavily overlapping conduct.

Graham v. Florida is also notable because it is the first U.S. Supreme Court case to clearly enunciate the principle that life without parole for juveniles is different from an ordinary prison sentence, in much the same way that the death penalty is treated much differently than a prison sentence in the criminal justice system.

Considering Youth

The offenders who were younger when they committed their crimes are also particularly attractive as candidates to receive pardons.

Extensive developments in neuroscience have confirmed what most people with common sense have long known. Adolescents are less culpable than adults who commit similar crimes because the parts of their brains relevant to culpability, like ability to control impulses and ability to make good judgments, are less developed. As people get older, the vast majority of people who had developmental deficiencies that made them succeptible to committing crimes mature and are no longer the threats to society that they were when they were younger. Hence, mercy for the individuals, once they have been incarcerated for long enough to "age out" of the period in their lives as their ability to control their conduct and make good judgment has matured, makes sense for them in a way that it does not for someone who continued to commit serious crimes even after becoming a mature adult. The concern is especially strong for the youngest offenders whose capacity to control their conduct, and hence to be culpable criminal actors, is weakest, and who have the greatest potential to mature into more responsible individuals.

Until the U.S. Supreme Court's most recent holding, banning the death penalty for all crimes committed by juveniles, only offenses committed by offenders who were sixteen or seventeen years old were eligible for the death penalty. Now that Graham v. Florida has made clear that life without parole for juveniles is indeed different, life without parole sentences imposed for crimes committed when juveniles were fourteen or fifteen years old look particularly suspect.

Colorado's General Assembly has also made a distinction between juvenile offenders who are sixteen or seventeen years old, and those who are fourteen or fifteen years old in the "direct file" statute that governs when juveniles can be charged with crimes as an adult without the permission of a judge. Direct file prosecutions of first degree murder are still permitted in Colorado when offenderrs are fourteen years old, but the legislative recognition of a distinction between fourteen and fifteen year olds on one hand, and sixteen and seventeen year olds on the other, also argues that this is an appropriate factor for the Governor to consider when faced with commutation requests related to offense committed by individuals when they were juveniles.

The Governor, in considering youth in the context of a pardon petition, also has the benefit of being able to look at how a youth incarcerated for life without possibility of parole has behaved while incarcerated. He might deny a pardon to someone who has been a constant disciplinary problem while in prison, while granting a pardon to someone who has had only the most minor infractions while incarcertion and sought to better himself or herself, despite not having any real prospects for eventual release. This can inform his decision making process with information that was not available to a trial judge had a trial judge had the discretion to decide what sentence would be imposed (which, of course, the trial judge did not). Thus, Governor Ritter can act with greater confidence as a result of this greater information, than the typical trial judge at sentencing in cases where lesser criminal sentences are considered.

Considering National and International Norms

National statistics on juvenile life without parole sentencing elicited in connection with the Graham v. Florida case and recited in that opinion and in related legal briefing also make clear that the younger an offender is, the more highly unusual it is for a life without parole sentence to be imposed on a juvenile offender. Life without parole is available for juvenile offenders at all in only a couple of other countries in the world and used very sparingly in those countries.

The case for pardons (really commutations) for the sixteen and seventeen year olds who personally killed people is the weakest, although the fact that those sentences could not be handed down today in Colorado is relevant.

Considering Discretion

As the Governor considers commutations for juveniles facing life without parole sentences in his final days in office, it is also worth recalling how little official discretion was available in these cases.

Once the prosecutor in these cases made the decision to direct file them as first degree murder cases, the judges in these case has no power to second guess that decision and send the cases back to juvenile court because the offender was not an individual suitable to try in juvenile court. Direct file was a controversial innovation made in 1993 in Colorado in response to the "summer of violence" and resulting in a major increase in the number of juveniles charged as adults in Colorado. Under prior law, juveniles could be tried as adults only with judicial permission. In 2008, 179 juveniles were tried as adults for crimes under the direct file law. Under the old direct file law, prosecutors were not presented with any evidence of mitigating circumstances that might make it appropriate to try a youth as a juvenile rather than an adult when the decision was made by the prosecutor. Mostly, the decision to charge juveniles as adults was made as a matter of course in order to improve the bargaining power of prosecutors in plea negotiations with defendants, thus making a conviction for something more likely.

The juries in these cases had no role in setting the sentence. The jury's role was simply to determine if the charge brought had been established beyond a reasonable doubt, something that is particularly easy to do in a felony-murder case, where the prosecution need only prove that the individual was part of a group committing a serious felony in the course of which someone was killed in connection with the crime by someone. There are circumstances in which one can exonerate oneself from felony-murder liablity after commencing participating in the crime, but the standards for doing so are so onerous that in practice they almost never apply.

The judges in these cases also had no role in setting the sentence. Life without parole is the only sentence available and was mandatory at the time these convictions were handed down. Under the case law in place at the time that motions were presented to judges at trial regarding these sentences and when these convictions were reviewed on appeal by appellate judges, there was likewise no legal basis for striking down the sentences on the grounds that they constituted cruel and unusual punishment. If the trial judge and appellate judges agreed that the individual was found guilty in a fair trial, the sentence was a foregone conclusion.

In most of these cases, if not all, prosecutors offered plea bargains that would have produced sentences of less than life without parole, and Colorado's prisons are full of similar individuals who were offerred and accepted lighter sentences. So, to a great extent, these individuals are serving life without parole sentences not because of their crimes per se, but because of bad decisions they made in the criminal justice process - something that juveniles are particularly prone to make and that may be in some of these cases something that was a product of receiving bad advice from their public defenders.

Also, since those people who believe that they are innocent of the charges against them are mostly likely to fight them, the possibility that some of the individuals who went to trial when facing a certain life without parole sentence if convicted, rather than plea bargain for a lesser sentence, are innocent (or more likely, were probably guilty of something other than a crime as serious as the one for which the individual was convicted) is real. Even people who are convicted in trials that do not meet the high bar for reversal on appeal aren't always actually guilty. The evidence from DNA based evidence to prove innocence in rape cases suggests that juries rule correctly about 90% of the time, although there are features of those cases, like mistaken identity by witnesses who have been harmed by a stranger, that aren't as important in a typical felony murder case where an accomplice seeking leniency may testify as to the identity of a defendant, that may reduce wrongful conviction rates in these kinds of cases.

I don't personally know if any of these individuals has made an innocence claim. Governors with pardon power often make a point of not pardoning those who claim innocence rather than admitting guilty and aspiring to reform, except in the most high profile and extraordinary cases where there have been closely divided judicial rulings, and innocent claims rarely prevail in collateral attacks on convictions in the courts when the death penalty is not imposed, so there is an incentive for these individuals not to make those claims.

Governor Ritter, as a former District Attorney, is well aware that these young people ended up serving life without parole sentences, rather than simply long prison sentences with some hope of eventual release for these crimes committed as juveniles, because of rare combinations of particularly aggressive exercises of discretion by prosecuting attorneys and bad gamesmanship by juveniles defendants in the criminal justice process.

Other Cases For Juvenile Clemency

A significant number of people in Colorado's adult prison system right now are serving sentences for crimes other than murder based on convictions under Colorado's old direct file system that was reformed under a law signed in May of this year by Governor Ritter, and the reforms have been a focus of legislative interest. The bill greatly reduced prosecutorial direct file discretion in Colorado for fourteen and fifteen year olds, although it retained it for fourteen and fifteen year old offenders charged with first and second degree murder and sex offenses after a fourteen day waiting period in which mitigating evidence can be presented to prosecutors.

The original version of the bill that ultimately passed with modifications would have converted old direct file convictions of fourteen and fifteen year olds to juvenile convictions, but that provision was stripped from the legislation, again in deferrence to the Governor's separation of powers concerns in support a constitutional vision of the pardon power as the preferred means by which sentences are changed retroactively. But, the Governor has thus far offered absolutely no mercy to any of the individuals convicted of crimes when fourteen or fifteen who faced the adult justice system under a direct file regime, even though they would be unlikely to have been tried as adults under current law (which has only been in effect for a few months so far).

There are something on the order of hundreds of juveniles serving adult sentences for crimes that they committed at age fourteen or fifteen in prisons in Colorado who would very likely be serving juvenile sentences instead under current law.

READ MORE - Still Waiting For Action On Juvie Pardons