LWOP Sentence For Zapata Murder Upheld On Appeal

The Colorado Court of Appeals has upheld the convictions of a man charged with first-degree murder and other counts in what prosecutors said was the bias-motivated killing of a transgender Greeley woman.

Allen Andrade of Thornton was convicted in 2009 of deliberately beating 18-year-old Angie Zapata to death with a fire extinguisher in 2008 after learning she was biologically male. Defense attorneys argued Andrade had planned to meet Zapata for sex and snapped after learning she was born male.

From here.

Adrande was sentenced to life in prison without possibility of parole. His main appellate arguments, an argument that the jury should have been giving an instruction mitigating his criminal culpability because he was drunk, and seeking to suppress the murder weapon from evidence, were mundane. My post from the day that he was convicted on April 22, 2009, is found here.

Given the fact that Adrande had at least three prior felony convictions in his fourteen years of adult life, and was charged as a habitual offender and was taped making a telelphone call from jail admitting to the killing (albeit arguably with a lower level of intent), made a confession to police (albeit arguably with a lower level of intent), and was arrested in possession of Zapata's stolen car, 32 year old Adrande would have gone to prison for 40 years to life, and also faced the 24 year sentences on other charges that he received, even if the appellate court had reversed the first degree murder conviction. He was convicted of a hate crimes charge, but given his first degree murder and other convictions, any appellate issues he could have raised related to that conviction wouldn't have mattered because they would have constituted harmless error at their worst.

The August 11, 2011 opinion of the Colorado Court of Appeals in case 09CA1310 People v. Allen Ray Andrade, was unpublished. It appears that the case was argued on the basis of the briefs with no oral argument in the case available in the Colorado Court of Appeals online archive of oral arguments.

Andrade could make a discretionary appeal to the Colorado Supreme Court, could make a state level collateral attack on his conviction after that, and could bring a federal habeas corpus petition after that according to strict procedural limitations. But, given the lack of a death sentence, the lack of a right to counsel for collateral attacks, the lack of a credible claim that he was not the one who killed Zapata, his long criminal history, and the weakness of his arguments on direct appeal and the weight of the multiple damning pieces of evidence against him, none of those efforts are likely to be successful. There is a good chance that he won't even bother with further appeals, although he does have nothing else to do for the rest of his life. And, Adrande is extremely unlikely, given the fact that he was not sentenced to death, has a long and serious criminal record, and there is no doubt that he was guilty of some serious crimes this time around, that he will ever receive executive clemency.

American Criminal Justice: Cheap, Final, Harsh and Fast

In practice, it is astoundingly unlikely anywhere in the United States, in the state or the federal system, that someone who is convicted of a crime and not sentenced to death, whose conviction is affirmed on direct appeal, will not have that conviction later overturned or will have that sentence commuted.

I'll also restate a note that I made in a previous post:

The speed with which very serious criminal cases like this one progress is notable. The murder took place on July 15, 2008, and was discovered two days later. Thirteen days after the murder was discovered, there was an arrest. Pre-trial dismissal for lack of evidence was ruled out less than two months after the discovery of the body.

The trial was completed, the jury convicted, and the sentence imposed on April 22, 2009, nine months and one week after the murder was committed, and less than nine months after he was arrested. The direct appeal of right was resolved yesterday, fifteen months and twenty days after he was convicted, and thee years and twenty-seven days after the murder was committed. For all intents and purposes, the criminal justice system is now done with this case and he is the Colorado Department of Corrections' problem until he dies.

The sentence is rarely this long, but the general timeline in this case isn't unusual for a serious violent felony. Not every criminal case is so swift, but a very large share of all criminal convictions do result from arrests very shortly after the crime is committed and are based on convictions after trials where the evidence is overwhelming or guilty pleas, which move cases even faster. The constitutional right to a speedy trial rarely makes headlines, and isn't something most people are even aware of, but it has a pervasive effect on the pace of criminal proceedings in the United States.

Also, while the exact number will probably never be determined, the marginal cost of this criminal justice system of investigating and litigating this case to trial was almost nil, as most of the people involved, the police, DA who prosecuted the case, the judge and court clerks who handled the case, and the defense lawyers in the case, are on the public payroll on a salaried basis, and even if the personnel costs for everyone involved was prorated on an hourly basis, this case probably cost less to investigate and litigate through an appeal than a typical serious automobile accident that results in some injuries but not a death or a six figure contract dispute. All of the investigation and litigation costs combined for all parties were probably less than the costs associated with nine months of pre-conviction incarceration.

Of course, incarcerating this murderer for the rest of his life will cost the people of the State of Colorado something on the order of a million and a half dollars in today's funds after adjusting for inflation, and the State of Colorado probably spent hundreds of thousands of dollars incarcerating him before his most recent conviction on prior felonies and no doubt, for juvenile offenses as well.

If the death penalty had been sought and secured, it probably would have cost the State of Colorado more in additional litigation costs and death penalty implementation than it would save in incarceration costs from his premature death, or at least wouldn't have saved very much. It is also worth recalling that death sentences are overturned much more often than murder convictions. For example, the results in all the cases that produced post-conviction reversals of death sentences that were finally resolved between April 1973 and 2000, 54 cases were retried and produced a death sentence on retrial, 223 led to a murder conviction with a sentence other than the death penalty, and 22 cases ended with a determination that the defendant was not guilty of a capital crime. Thus, more than twelve out of thirteen death penalty sentence reversals ultimately kept a capital murder conviction in place, and some of the one in thirteen cases where a capital murder conviction was itself reserved still left some serious felony conviction in place rather than leading to a finding of outright innocence of any crime (the cases where there is a chance of innocence on all counts due to factors like mistaken identity or police frameups are the ones groups like the Innocence Project prioritize).

Deprived of any hope of release, little meaningful activity to carry out in prison, convicted of a sex related crime, and marked with a long track record of violent offenses, one can expect that Andrade will start his prison career at a very high security level and stay there, and that he will not be a model inmate.

One would like to think that people serving long prison sentences provide some benefit to society while they are there apart from staying out of the lives of law abiding citizens while they are incarcerated, although our system of criminal justice certainly doesn't make that a priority and is perfectly happen to simply waste and right off any contribution that incarcerated people could make for the most part.

For all the twists and turns of the criminal justice system that make headlines and feature in crime fiction, reality is that the vast majority of criminal prosecutions produce convictions for something, that a minority of cases go to trial and a minority of those cases that are appealed are reversed on direct appeal, that it is fairly unusual for even a criminal sentence to be reversed on appeal, and that executive clemency is almost non-existent. Also, the percentage of people who escape from incarceration in a state prison is infinitessimal, and is even smaller in the case of prisoners in the highest security environments who have committed serious violent crimes (a large share of all escapes are walk aways from community corrections facilities, work release programs or minimal security facilities housing the least serious offenders). And, convicting someone of escape once they are rearrested, given the availability of prison records, DNA evidence, fingerprints, photographs and so on, is little more than a formality.

By the time the police make an arrest and a prosecutor files charges the probable future is usually very clear, and the vast majority of the time that there is a conviction it sticks. And, it is done very cheaply.

Pretty much the only way to have a reasonable chance of escaping some punishment for a crime is to not get arrested in the first place, and of course, that usually is what happens.

Why point all of this, which is obvious to those familiar with the system except politicians, for the most part?

First, there has been a lot of criticism that the Warren revolution in constitutional criminal procedure has made it easy to escape punishment from the criminal justice system. The reality is that there isn't much merit to that assertion. People who are arrested for serious crimes are usually convicted of something and usually get long prison terms if they have criminal records and committed really serious crimes, indeed, longer terms than anywhere else in the world pretty much.

Second, there has been a strong conservative movement to cast doubt on the capacity of the criminal justice system to handle terrorism suspects. But, there is extremely little evidence to suggest that it is not an effective way to punish them and there is considerable evidence to show that the due process protections and fairness of the criminal justice system, relative to more draconian approaches proposed to deal with terrorism, is better at preventing incapacitation of one terrorist from causing future terrorist acts inspired by action taken against the first terrorist. The claimed need for deprivations of civil liberties is premised on the incapacity of the civilian criminal courts to secure convictions and impose long sentences for terrorist acts which is simply not supported by experience in these cases.

READ MORE - LWOP Sentence For Zapata Murder Upheld On Appeal

The Trouble With Felony-Murder

Law professor Guyora Binder's recent law review article on felony-murder is guilty of running down a straw man argument. Professor Binder argues that the offense of felony-murder, which is the law in 45 states and allows for a murder conviction by someone who did not intend to kill but was involved in felony that resulted in a death is legitimate in the vast majority of cases since the death does amount to, at least, negligent homicide in an aggravating circumstance. The problematic cases, Binder argues, are those in which the causation requirement is too weak because the death was not foreseeable.

Binder refrains from seriously addressing the capital punishment implications of a mere participant in a felony who had no direct role in causing the death, or the grading of the murder involved, which is a great shame as it is the most central issue in the matter. A mere participant in a felony that gives rise to death is eligible for the death penalty, and is also eligible for life imprisonment without parole. Indeed, felony-murder was invented historically precisely to separate a subclass of murders for which the death penalty would be available from a subclass of murders for which it would not be available, such as impulsive murders not involving pre-meditation or another felony.

While few criminal justice scholars would seriously doubt that it is not unreasonable for involvement in a dangerous felony that causes a death (at least foreseeably) to be punished more severely than involvement in a dangerous felony that does not cause a death in some manner, most would also agree that, as a class, the individuals who are mere participants in group felonies where someone else causes a death, include the largest share of individuals who are the least culpable murder convicts who are eligible for the death penalty or life without parole sentences in current law. Moreover, since no sentence less than life without possibility of parole is often allowed upon a conviction for this offense and the death penalty is often a permitted sanction for it, these are cases where the lack of a potential for judicial mercy in sentencing is highly troubling. For example, it is no coicidence that a large share of all juveniles sentenced to life in prison without parole in Colorado were convicted of being a participant but not actual killer in a felony-murder case where judicial discretion to classify the case as a juvenile one was also absent.

While lack of foreseeability of a death is a problem in some cases, at least as important is the grading of felony-murder as a form of capital murder rather than as mere ordinary non-capital murder for which considerable sentencing discretion to fit the facts and circumstances of the case and the defendant's involvement in its are involved.

Binder's apology for felony-murder statutes make sense in a world where there is a foreseeability requirement and felony-murder is the same grade offense as ordinary murder and conspiracy to commit capital murder, but below the grade of capital murder. But, because of the historical origins of this crime as a grading device that inadvertantly expanded as well as narrowed the scope of the death penalty, this is rarely the case, and it is a pity that Binder's analysis relegates the key issue of death penalty eligibility to a mere footnote and doesn't squarely address life without possibility of parole sentencing without judicial discretion at all.

Binder also fails to address in any meaningful way the extremely restrictive standards for renunciation of felony-murder culpability in most jurisdictions that makes it almost impossible for an uncounseled defendant acting in the heat of the moment to qualify even when genuine renunciation and efforts to undo the crime set in motion are present.

READ MORE - The Trouble With Felony-Murder

Judge Determined Death Sentences In Alabama

Of the 34 states with the death penalty, Alabama is the only jurisdiction where judges routinely override jury verdicts of life to impose capital punishment. Since 1976, Alabama judges have overridden jury verdicts 107 times. Although judges have authority to override life or death verdicts, in 92% of overrides elected judges have overruled jury verdicts of life to impose the death penalty.

Twenty-one percent of the 199 people currently on Alabama’s death row were sentenced to death through judicial override. Judge override is the primary reason why Alabama has the highest per capita death sentencing rate and execution rate in the country. Last year, with a state population of 4.5 million people, Alabama imposed more new death sentences than Texas, with a population of 24 million.

Override is legal in only three states: Alabama, Delaware, and Florida. Florida and Delaware have strict standards for override. No one in Delaware is on death row as a result of an override and no death sentences have been imposed by override in Florida since 1999. In Delaware and Florida, override often is used to overrule jury death verdicts and impose life -- which rarely happens in Alabama.

From the Equal Justice Initiative via the Sentencing Law and Policy Blog.

The study will, very likely, be the basis of court challenges to and efforts to legislatively change the practice.

READ MORE - Judge Determined Death Sentences In Alabama

Young Juvie LWOP Found Constitutional By Wisconsin Supreme Court

The Wisconsin Supreme Court had declined to find a life without possibility of parole sentence unconstitutional in the case of a fourteen year old convicted of first degree murder, a ruling relevant to Colorado because it also has young juveniles serving life without possibility of parole sentences.

Colorado Compared

The issues are not strictly parallel to those in Colorado, however.

In the Wisconsin case, the trial court had the authority to impose a lesser sentence and declined to do so based on the particular facts, circumstances and mental capacity of the defendant. The crime of conviction also involved personal involvement of the juvenile in the killing.

In Colorado, a juvenile tried as an adult and convicted of first degree murder was automatically given a life without possibility of parole sentence (the death penalty was unavailable) without regard to the facts, circumstances or mental capacity of the defendant, and the judge had no ability to either mitigate the sentence or to make a determination that the juvenile was not eligible to be tried as an adult (a decision vested solely in prosecuting attorneys under Colorado's direct file law at the time). The only role that a judge and jury had in determining the sentence was to determine if the juvenile committed the crime of first degree murder, which in Colorado, includes criminal liability as a participant in a crime that causes a death even if the juvenile was not actually personally involved in the murder itself.

Given the wide deference that judicial determination of facts relevant to sentencing is given on appeal, it was therefore far harder for the juvenile in Wisconsin to make an "as applied" challenge to the constitutionality of a life without possibility of parole sentence than it would be to do so in Colorado. Notably, in death penalty cases, non-discretionary death penalty sessions that do not allow juries to individually weight aggravating and mitigating circumstances where a conviction authorizes the death penalty are not allowed, and there is at least some case law that seems to say that just as "death is different," that "juvenile life without parole" is different.

Thus, the only part of the Wisconsin precedent that is really directly applicable to Colorado as persuasive authority is its finding that the United States Constitution does not categorically prohibit the imposition of a life without possibility of parole sentence upon a fourteen year old for first degree intentional murder.

Specifically distinguishing young juveniles was something that might have been relevant to the "unusual" part of the cruel and unusual punishment analysis because only a small portion of juveniles sentenced to life without possibility of parole sentences are young juveniles and fewer states permit these sentences to be imposed on them, either directly, or because they are not eligible to be tried as adults for that crime. But, the Wisconsin Supreme Court, a conservative leaning court by most accounts after the more conservative candidate narrowly won its most recent highly contested judicial elections, chose not to find this sufficient grounds to find that Wisconsin's statute was categorically unconstitutional.

The Larger 8th Amendment Legal Context

In  general, states have very wide discretion to set sentences for criminal offenses committed by adults and juvenile offenders.

This decision comes against a fairly well tested backdrop of precedents on the constitutional boundaries on criminal punishment under the 8th Amendment protection against cruel and unusual punishment and some other constitutional provisions with similar effects.

The federal constitutional issues, although not any other issues raised in the Wisconsin case, could be appealed to the U.S. Supreme Court, which has held unconstitutional a Florida statute that imposed a life without parole sentence in cases that do not involve murder or "crimes against the state" (e.g. treason and espionage) as a violation of the Eighth Amendment protection against cruel and unusual punishment as incorporated to apply against the states under the Fourteenth Amendment to the United States Constitution.

The U.S. Supreme Court has prohibited the use of the death penalty for cases that do not involve murder or "crimes against the state" or for juveniles under the age of eighteen or for the mentally retarded.  For example, it held that the death penalty was not permitted for the rape of a child.  It is not entirely clear to me if the death penalty is constitutional in cases where proof of a murder is not required by is strongly presumed under the circumstances (e.g. a kidnapping where the victim has not been released alive but not been established to be dead), something that is permitted on the statute books in some states but has never been tested under currently applicable constitutional law to my knowledge.  No one is currently on death row for such an offense in the United States, but the justification for such laws is similar to the justification for the death penalty in cases involving "crimes against the state" like espionage.

The U.S. Supreme Court has also held, however, that felony-murder convictions as we as murder convictions based upon personally killing someone or soliciting a murder are eligible for the death penalty (although the role of the person involved is something that a sentencing jury may consider when it decides whether or not to impose a death penalty for a first degree murder), and the U.S. Supreme Court has ceased to make a distinction between young juveniles and older juveniles in eligibility for the death penalty, something that it had done under prior law. The certiorari decisions the U.S. Supreme Court made in its juvenile life without possibility of parole case from Florida had seemed to indicate that at least some justices found a distinction between young juvenile and older juveniles to be meaningful, but it ultimately did not reach that question in that round of cases.

Corporal punishment other than the death penalty, and methods of imposing the death penalty, are at least constitutionally suspect in some cases, particularly if it foreseeably results in, a gratuitous and unnecessary infliction of pain. Similarly, rape as a form of legally authorized punishment by the state is probably unconstitutional. There is also a separate part of the law of cruel and unusual punishment that pertains to the conditions of a sentence of incarceration rather than to the length of the sentence. The most actively litigated controversy in this area is the extent to which long term solitary confinement imposed in the discretion of a prison warden is constitutional. To date, no federal constitutional precedents that I am aware of place clear boundaries on this practice, but it is attracting increasing legislative and judicial attention.

I am not familiar with constitutional precedents on a minimum age at which adult criminal punishments are constitutional.  Most states observe some lower bound and exercise discretion to refrain from doing so in a large share of cases where it might have the constitutional authority to do so.  But, there is probably some point at which, for example, a life without possibility of parole sentence imposed for a murder committed by a very young juvenile, perhaps a six year old, would be held to be cruel and unusual.

Furthermore, the constitutionality of a non-discretionary life without parole sentence for an adult convicted of first degree murder, whatever its character, has been upheld in hundreds, if not thousands, of cases. Similarly, no serious challenges have had success challenging life sentences where there is a possibility of parole, or long sentences for a term of years, for either juveniles or adults for anything but the most trivial offenses when committed by non-recidivist offenders. I am not aware of any case law that addresses the question of whether a juvenile's criminal record is relevant to the 8th Amendment constitutionality of a very long sentence for a fairly minor crime committed as an adult, in part, because few states do this in practice. 

Cases under California's three strikes law have established that a life without possibility of parole sentence, even for petty theft, when committed by an adult who has been convicted of two prior serious (but non-violent) adult felonies, is not an unconstitutional violation of the 8th Amendment's protection against cruel and unusual punishment.  Very long sentences, although not life sentences, for minor first time drug possession convictions, have also been upheld as constitutional.  The only practical limitations on criminal sanctions for minor offenses are procedural - a right to a jury trial (in cases where a sentence could be to more than six months of incarceration) and of indigent parties to an attorney (if incarceration can be imposed as part of the sentence) must be available if sentences of a certain severity are a possibility upon a conviction.  As a general rule, an individual can be arrested and detained briefly consistent with the constitution, even for petty offenses for which incarceration is not available as a sentence upon conviction.

I know of no cases that have found that a sentence to prison for a term of years for one or more offenses that is so long that it amounts to a life without possibility of parole sentence is unconstitutional, although it makes logical sentence that this would be the case in some very long juvenile sentences for offenses other than murder or "crimes against the state" (e.g. a sentence of 120 years in prison without possibility of parole until 90 years have elapsed for a rape committed by a seventeen year old defendant).

A few cases have found unconstitutional criminal statutes that impose a longer sentence than the sentence imposed for an unequivocally lesser crime or an identical crime committed by someone with another constitutionally irrelevant difference in status under the equal protection clause of the 14th Amendment, rather than under any sort of proportionality principal of the 8th Amendment. But, those cases has largely involved idiosyncratic fact patterns.  Somewhat meaningful limitations on the size of punitive damage awards in civil cases relative to the amount of compensatory damages awarded have also been imposed as a matter of constitutional law in some circumstances.

Finally, there is a great deal of jurisprudence under the federal criminal code and U.S. Sentencing Guidelines over what sentences within the statutory maximum sentence authorized by a jury are "reasonable" or in contrast, constitute an abuse of discretion by a judge and does not adequately justify a departure from the sentencing guidelines.  These cases have invalidated sentencing decisions that are well within the boundaries of statutory maximum penalties for offenses that have been held to be constitutional, but also sometimes invalidate sentences for being too lenient.  But, these cases are questions of statutory interpretation rather than constitutional limitations on sentencing.

One of the most controversial parts of the U.S. Sentencing Guidelines jurisprudence is the part that has upheld the constitutionality of judicial consideration of acquitted conduct or uncharged conduct in imposing a sentence less than or equal to the statutorily authorized sentence for the crimes of conviction.  So, for example, someone with no prior criminal record convicted of a low level felony larceny count that might ordinarily garner a short sentence of incarceration (perhaps a year in prison) under the U.S. Sentencing Guidelines can constitutionally be given the maximum sentence available for someone with a long criminal record and large dollar value theft under that offense (perhaps twenty years in prison), if the judge believed that the individual also murdered someone, even if the jury acquitted the defendant of that charge.

In principle, the largely unrelated line of cases imposing limits on conduct that can be subject to criminal sanctions at all also imposes constitutional limitations on criminal sentencing, but these limitations are mostly unrelated to the line of cases related to cruel and unusual punishment.  Notably, the U.S. Supreme Court has declined, for example, to prohibit criminal defamation statutes in circumstances where civil liability for defamation would be permitted.

Clemency

Of course, Governors of states that impose juvenile life without possibility of parole sentences, and the President in the case of federal juvenile life without possibility of parole sentences, can commute a life without parole sentence to a lesser sentence or pardon the individual and have them released from incarceration. These decisions are not bound by precedent in any way.

Colorado's Governor Ritter convened a new panel to advise him on juvenile clemency and grant a few instances of clemency based upon its recommendations, but including two juvenile life without possibility of parole sentences in Colorado. The weight of the decision on the other cases currently rests on Governor Hickenlooper's shoulders for the several dozen juveniles serving these sentences in Colorado (no new juvenile life without parole sentences can be imposed in the state; newly sentenced juveniles convicted of first degree murder are eligible for parole after forty years).

READ MORE - Young Juvie LWOP Found Constitutional By Wisconsin Supreme Court

Selected Bad Precedents and Rules of Law

What rules of law (other than those in the U.S. Constitution) and court precedents, that remain good law, are on my list of the worst precedents and rules of law?  I supply the bad holdings only below, rather than presenting a more scholarly version that cites the case making that law in this post.

Criminal Justice

1.  Acquitted conduct may be considered when calculating a sentence under the U.S. Sentencing Guidelines, or in general, as a basis for a sentence by a judge following a jury verdict.

2. It is constitutional to try guilt or innocence for a death penalty crime before a "death qualified" jury.
3. The death penalty is permitted in felony-murder cases where the convicted defendant was not a trigger man and did not solicit a murder or conspire with the intent of causing a murder.

4. No imprisonment sentence for a recidivist felony offender, no matter how trivial the current offense, violates the 8th Amendment protection against cruel and unusual punishment.

5. There is no constitutional requirement that criminal sentences for clearly lesser crimes be no more severe than clearly greater crimes (e.g. child rape is often punishable by a shorter sentence than non-commercial possession of child pornography).

6. Photographs of lawful conduct can be criminal to produce and distribute (e.g. in child pornography cases involving adolescents above the age of consent engaged in consensual, non-commercial sex).

7. Neo-natal homicide by women in the throes of childbirth constitutes first degree murder (true in Colorado and in some other states).

8. Criminal defendants who have been convicted are not generally permitted to benefit from subsequent reductions in the sentence for the crime of conviction.

9. A decision of a criminal defendant to testify in his or her own defense opens the door to introduction of evidence of prior criminal convictions that would otherwise be inadmissible.  (Note that there is not a single alternative to this rule, but the rule as currently posed is problematic.)

10.  Plea bargain offers are not relevant in any legally binding way to the validity of a later sentence upon conviction.

11.  Acquittal of an offense in a state court does not trigger double jeopardy protections in a criminal prosecution by another state or the federal government (and likewise acquittal of a offense in a federal court does not trigger double jeopardy protections in state court).

12. Federal habeas corpus review is limited the violations of constitutional rights that took place through the conviction, even if after acquired evidence can establish innocence or cast substantial doubt on the accuracy of the verdict.

13. Forfeitures of rights in a criminal case as a result of the failure of court appointed counsel to act is not, per se, unconstitutional ineffective assistance of counsel.

14. The exclusionary rule applies to physical evidence obtained in violation of the 4th Amendment.  (In such cases, damage awards would be more appropriate.)

15. Defects in grand jury indictment process, or preliminary hearing process can constitute a basis for the reversal of a conviction in a criminal case.

16. Multiple offenses, not interrupted by a period of incarceration or a criminal proceeding, often lead to consecutive rather than concurrent sentences of imprisonment.

17.  State court criminal juries need not be unanimous as a matter of constitutional law.
Governmental Liability

1. Liability for civil rights violations is not vicarious. Employers of civil rights violators are only liable if affirmative misconduct is shown.
2. The 11th Amendment establishes a substantive principle of state sovereign immunity, rather than merely limiting venue in select types of lawsuits.

3. Qualified immunity for civil rights violations of constitutional rights that are not well established extends to all liability, rather than merely to liability for punitive damages.

4. Imprisonment as a result of a wrongful conviction does not give rise to liability under the takings clause of the due process clause of the 5th and 14th Amendments.

5. Judicial enforcement of a legal right does not constitute state action for civil rights action purposes.

Civil Procedure and Choice of Law

1.  A federal court complaint fails to state a claim in cases where an alleged civil liability arises from acts that only the alleged offender is in a position to know absent espionage or whistle-blowing for failure to establish that it is "plausible" that such secret action took place.

2.  A federal law counterclaim does not give rise to federal court jurisdiction in a civil action.

3.  Corporations not treated a residents of every state where they have a regular place of business for diversity jurisdiction purposes.

4.  Appeals from courts of inferior jurisdiction (at least in Colorado, New York, and some federal court contexts) are to the court of general jurisdiction rather than to the intermediate court of appeals.

5.  Default civil judgments cannot be set aside for mistake, inadvertence, surprise, execusible neglect, fraud, misrepresentation or other misconduct of an adverse party more than six months after the judgment is entered, even if no action is taken to enforce the judgment in that time period.  (Many defendants don't recognize that a default judgment has been entered or is a problem and have an incentive to do something about it, until it is enforced.)

6.  Judges are not permitted to resolve disputed issues of fact prior to trial in actions where the right to a jury trial has been waived.

7.  The right to a jury trial depends upon the classification of an action as arising in law or in equity, rather than expressly on facts such as the availability of money damages v. injunctive or declaratory relief, the availability of damages for non-economic damages, or allegations of fraud.

8.  Personal jurisdiction is available in defamation actions in forums other than the forum in which the allegedly defaming party resides, or was present when the defamatory statement was allegedly made by the defaming party.

9.  Personal jurisdiction is available in contract actions in forums other than the forum in which the allegedly breaching party resides, where the allegedly breaching party was present when executing the contract, where the contract provides that jurisdiction shall be available, or where the contract duties other than payment are to be performed (e.g. where the non-breaching party resides, or where contract negotiations took place).

10.  The U.S. Supreme Court and federal courts have jurisdiction to review disputes concerning the outcome of federal elections (i.e. U.S. House of Representatives, U.S. Senate, electoral college votes) made by state courts and by state and local governments, as opposed to confining these decisions exclusive to state courts and Congress.

Constitutional Law Other Than Individual Rights

1.  Treaties may be unilaterally repealed by an ordinary law enacted by Congress and are not generallly viewed as self-executing.

2.  The filibuster has the practical effect of imposing a sixty vote supermajority requirement on all legislation in the U.S. Senate for which a higher supermajority requirement is not imposed.
Tort and Environmental Law

1.  The CERCLA (superfund) liability exception for innocent property owners is not sufficiently narrow to protect innocent property owners from all liability in excess of forfeiture of the property and forfeiture any profit received from the property.

2.  There is no vicarious liability for medical malpractice.

3.  Warnings that it is foreseeable that an ordinary user of a product will not read are relevant to product liability.

4.  Ordinances requiring property owners to clear their sidewalks of snow do not give rise to negligence per se civil liability in Colorado.

Intellectual Property Law

1.  Intellectual property protection is available for images of publicly available buildings.

2.  Intellectual property protection is not per se unavailable for materials delivered voluntarily to an intended receipient on a non-commercial basis.

3.  Statutory damages are permitted in intellectual property actions in cases where the existence of a market for identical or closely comparable intellectual property and a calculation of attorneys' fees permits accurate determination of the damages actually suffered by a defendant.

4.  Stautory damages are determined per infringing work rather than per defendant.

5.  Injunctive relief is available for patent law violations even when the holder of the patent has known about the infringement and has failed to assert any rights until the economic impact of an injunction far exceeds the economic impact had the infringement been alleged when the infringement was first discovered, or when the patent holder is not engaged in the production of a competing product.  (In such cases, a court imposed accounting for profits on the basis of the licensing agreement that would have been made if the parties had negotiated a license should be imposed instead).

6. Intellectual property protection is available for public performance without modification of intellectual property made available for free, for example, via broadcast television or radio.

7. Copyrighted works take an extremely long time to enter the public domain, even if the owner has taken no action whatsoever, even a copyright registration, to assert copyright protection.

Bankruptcy

1. There is no general priority for trade creditors.

2.  It is not generally possible to cramdown a personal residence mortgage in bankruptcy.

3.  Replacement value, rather than the value of a debtor's assets to a creditor if obtained via a writ of execution, is used to value tangible personal property in bankruptcy.

4.  Default interest in excess of pre-default interest rates, late payment fees, and punitive damages have the same priority as general creditor claims as pre-default interest rates and principal claims.

5.  Exemptions from creditors in bankruptcy vary from state to state.

Trusts and Estates

1. Beneficiary designations supercede later executed probates wills.

READ MORE - Selected Bad Precedents and Rules of Law

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 News Dump

In Colorado

* Colorado's unemployment rate in February, of 9.1%, is the highest the state has experienced since the Great Depression and above the national rate of 8.9%. The oil bust of the early 1980s brought the rate to its previous peak of 8.8%. Also, unemployment estimates for Colorado over the last couple of years turn out to have been greatly understated, since the census revealed that the population figures used in making the original unemployment predictions were too low in high unemployment areas. Colorado's record lowest unemployment, since 1976, was at the turn of the millenium when it dropped to a little under 3%.

State officials have blamed migration to Colorado and the decision of many people who have given up looking for work to return to the workforce. Still, the fact that unemployment is climbing, rather than falling, long after the "recovery" in GDP terms has been underway, is discouraging. Unemployment is alawys a lagging indicator, but the employment situation has been worse and longer lived in the current employment recession than any since the Great Depression.

* Despite an immense state budget deficit, House Republicans in Colorado are still proposing large new tax cuts, in excess of $60 million.

* Colorado's proposed state budget will include more cuts to the Fort Logan psychiatric hospital, continuing a trend of decreasing mental health hospital capacity. The current cuts would close a juvenile ward that current houses an average of a dozen inpatients. The Joint Budget Committee argues that private facilities in the state offer the same services at a lower price and can handle another dozen patients.

In Other State Legislatures

* Both houses of Wisconsin's state legislature has passed a bill ending collective bargaining for public sector workers in Wisconsin's state and local governments. Republican Governor Walker has promised to sign the bill, which he championed. Naturally, the bill received voted only from Republicans, and a few Republicans broke ranks to join with Democrats in opposing it. Protests continue in Madison, with farmers set to encicle the state capitol with tractors next. Public opinion in Wisconsin has shifted decisively away from the Republicans and towards President Obama and the public employees unions in Wisconsin as a result of the union fight. Recall efforts are underway targeting a number of legislative anti-union Republicans, although it isn't clear if these will make the ballot or have a realistic chance at succeeding. Similar efforts are making progress in other Republican controlled states.

* The Governor of Illinois signed a bill abolishing the death penalty in that state, appropriating the funds that would have been used for death penalty litigation to a trust for murder victims, and pardoned the fifteen people on death row there. Illinois is the 16th state in the United States to abolish the death penalty.

* Kentucky has joined the list of states addressing state budget shortfalls with sentencing reforms, particularly with milder sentences for non-violent drug users.

Kentucky . . . became the latest to make the shift when Gov. Steve Beshear signed into law a measure increasing spending on rehabilitation programs and intensive drug testing. The law also reduces penalties for many drug offenses and may allow some traffickers and users of smaller amounts of drugs to avoid prison.

Delaware, Florida, Indiana, Massachusetts and Pennsylvania are among those that have pending bills to reduce penalties for drug offenders, in some cases by directing defendants into treatment programs. Similar laws have taken effect in South Carolina, Colorado and New York in recent years. States have maintained stiff penalties for more-serious drug crimes.

While the changes are part of broader belt-tightening efforts, they also reflect a growing belief among state lawmakers that prosecuting drug offenders aggressively often fails to treat their underlying addiction problems and can result in offenders cycling in and out of prisons for years — a critique long voiced by groups that advocate in favor of defendants' rights. . .

The state measures mark a sharp retreat from the war on drugs, which gathered steam in the 1980s and '90s with mandatory-minimum and three-strikes prison sentences that resulted in some drug offenders being locked up for decades. Drug arrests nationwide climbed from about 580,000 in 1980 to about 1.6 million in 2009, according to the Federal Bureau of Investigation.

Although some states started rethinking drug punishment before the recession, many more states have come on board in the past two years. In 2007, Texas began shifting more drug offenders away from prison, which helped hold down the inmate population. The changes cost $241 million, less than half what the state anticipated it would have spent to build three new prisons.

* Ohio's criminal sentencing commission has released a new report on the causes of that state's prison overcrowding problem. According to the report, "recent growth in Ohio’s prison population — even with mandatory sentences and scores of bills that increase penalties for particular offenses — is not driven primarily by intake (although it is a factor). It’s largely fueled by increases in inmates’ average length-of-stay."

* Connecticut voters in a survey favored the decriminalization of marijuana (79% favor medical marijuana and 65% favor decriminalization), legalizing Sunday liquor sales (65%), and reinstating the death penalty (68% up from 59% in 2005 after a high profile murder). But, majorities there don't favor allowing grocery stores to sell wine or liquor. Connecticut currently has a death penalty but its legislature is considering repealing it.

* Connecticut last year joined a list of states that automatically treat some teens under the age of eighteen as adults in the criminal justice process; New Hampshire changed its law in 2008. Similar proposals are pending in Massachusetts, Wisconsin, and North Carolina. The only other state that automatically tries some teens under the age of eighteen as adults is New York State. Budget savings and increased sensitivity to the distinctiveness of juvenile offenders has prompted the changes. For example, a recent study found that:

[I]nmates in adult facilities (surprisingly) give better reports than youth in juvenile facilities on several measures (including criminal activity and victimization), they also fare much worse on other measures. Importantly, the inmates in adult facilities report substantially and significantly greater rates of PTSD and mental illness symptoms, and are much more likely to be afraid for their safety, compared to those in juvenile facilities.

Colorado never had a law that automatically tried older teens under the age of eighteen as adults, but did give prosecutors the authority to directly file many serious criminal charges against older juveniles as adults without court approval; that authority was recently narrowed by Colorado's General Assembly.

* California is building a new death row prison at a projected cost of $356 million, as a partial response to federal prison overcrowding litigation in the state, in which inmates have been successful on the merits, but not seen many results.

California has 713 inmates awaiting execution. . . . By comparison, Florida ranked second, with 398, and Texas was third at 337. . . About 700 condemned men are confined at San Quentin, north of San Francisco, in facilities built to hold 554, according to the Corrections Department’s website. (Nineteen women face execution and are held in Chowchilla, a prison in the Central Valley.) On average, the men are likely to spend 17 years in the aging cell blocks, according to the prison system. . . . Since 1978, when California reinstated capital punishment, 53 condemned inmates have died from natural causes while on death row. Eighteen committed suicide and 13 were executed. Six died from other causes.

Other Domestic News

* Long Island Republican Congressman King has launched hearings in the House Homeland Security Committee into the radicalization of Islam, over objections that this amounts of a McCarthyistic inquiry that is singling out a single religion that may incite further terrorist sentiment against the United States.

* In Skinner v. Switzer, the U.S. Surpeme Court found, in a narrow 6-3 decision, that a Section 1983 civil rights suit by a death row inmate (as opposed to a habeas corpus suit) was not procedurally barred by prison litigation reform statutes. The inmate challenged an interpretation of a Texas law that prevented him from securing post-conviction access to DNA evidence in his muder case that might implicate another suspect (now dead). The court ruled in his favor because DNA testing itself does not necessarily lead to the setting aside of his conviction, as it could show that he is guilty or be inconclusive (and hence is not duplicative of habeas corpus relief), and does not violate the Rooker-Feldman doctrine because while a "state-court decision is not reviewable by lower federal courts . . . a statute or rule governing the decision may be challenged in a federal action"). The ruling also provided yet another case where heightened pleading standards in federal civil litigation were held not to bar a straightforward lawsuit brought by a prisoner.

* Excessive federal child pornography laws continue to produce absurd results:

In the spring and summer of 2006, Eric Rinehart, at the time a 34-year-old police officer in the small town of Middletown, Indiana, began consensual sexual relationships with two young women, ages 16 and 17. One of the women had contacted Rinehart through his MySpace page. He had known the other one, the daughter of a man who was involved in training police officers, for most of her life. Rinehart was going through a divorce at the time. The relationships came to the attention of local authorities, and then federal authorities, when one of the girls mentioned it to a guidance counselor. Whatever you might think of Rinehart's judgment or ethics, his relationships with the girls weren't illegal. The age of consent in Indiana is 16. . . . Rinehart got into legal trouble because one of the girls mentioned to him that she had posed for sexually provocative photos for a previous boyfriend and offered to do the same for Rinehart. Rinehart lent her his camera, which she returned with the promised photos. Rinehart and both girls then took additional photos and at least one video, which he downloaded to his computer.

In 2007 Rinehart was convicted on two federal charges of producing child pornography. U.S. District Court Judge David Hamilton, who now serves on the U.S. Court of Appeals for the 7th Circuit, reluctantly sentenced Rinehart to 15 years in prison. Thanks to mandatory minimum sentences, Hamilton wrote, his hands were tied. There is no parole in the federal prison system. So barring an unlikely grant of clemency from the president, Rinehart, who is serving his time at a medium-security prison in Pennsylvania, will have to complete at least 85 percent of his term (assuming time off for good behavior), or nearly 13 years.

* An NPR executive resigned after remarking in a secretly recorded conversation that the Tea Party was full of racists, despite the fact that this is true.

* Oil prices are rising on Mideast turmoil.

* Blockbuster, the dominant player in the storefront video rental market, reached an agreement with its creditors to be auctioned as a business to the highest bidder, rather than having its assets liquidated. Netflix, video on demand, and kiosk video rentals have destroyed its profitability. The chain, which grew dramatically through acquisition of competitors, also probably simply had too many stores for the market's demand and hasn't been able to shutter them fast enough. For example, in Denver at 6th Avenue and Grant Street, it once had two stores less than a block apart - both are now shuttered.

* Department store H&M has decided to open up stores in greater Denver, with the Saks location at the Cherry Creek Mall which is closing likely to be one of them.

Abroad

* Japan has had two major earthquakes in the last week. One was magnitude 7.2 on the Richter scale, and the last night there was an 8.8 magnitude quake that also gave rise to a Tsunami that reached as far as Hawaiii this morning and will be experienced as far off as Peru. The first Japanese quake produced only minimal damage. The current one killed about a hundred people and led to considerable property damage in a few industrial areas mostly from the tsunami waves rather than the earthquake itself. Similar magnitude earthquakes in Iran, Indonesia and Haiti have produced massive loss of life and long term devistation, but Japan's earthquake conscious building codes and better prepared people prevented the damage from being greater. A smaller earthquake in China this weak produced loss of life and property damage comparable to that experienced by last night's massive quake.

* Civil war continues to rage in Libya and France has recognized the rebels as the legitimate government of the country; NATO nations remain reluctant to intervene militarily there. Egyptians will vote on amendments to military proposed amendments its constitution this month to prepare for prompt democratic elections that will transfer power from a military council to civilians. Protestors in Jordan have complained that a new prime minister is stalling on proposals for political reforms, using the fact that the country's 32 political parties are too fragmented to produce quality elections; the main democratic reform that has been demanded is to shift control of the executive branch from the king to a prime minster selected by parliament. Police in a predominantly Shi'ite part of Saudi Arabia shot five protestors at a small demonstration; protests in the absolute monarchy have been muted compared to elsewhere in the region - in part because Saudi Arabia is more repressive and in part because the current Saudi King is popular with majority Sunnis in the country.

* The Daili Lama in Tibet proposed on the anniversary of the day of Tibet's failed 1959 bid to free itself from China, to transfer political power of the government in exile to elected leaders, leaving himself and his successors as spiritual leaders only. Proposed succession to his position is currently unclear as he has also proposed reforms to the traditional approach rooted in the notion that he is reincarnated. China remains officially outraged at any talk of Tibetan independence, or the notion that Taiwan is not part of China. China is also cracking down in an effort to prevent the Jasmine revolution of the Middle East from spreading to it.

Medicine

* A drug to prevent the spread of M.S. has worked in a mouse model. A mouse model of a drug to treat Alzheimer's disease and damage from minor strokes in the brain has also been successful. A new drug to treat lupus has come on the market. Progress has been made in developing a new class of anti-malaria drugs based on a chemotherapy drug.

READ MORE - Friday News Dump

Do We Need A Better Early Warning System?

Meet Mr. Loughner

Jared Lee Loughner, the Tuscon assassin, was a troubled young man.

It was clear that he was a problem, possibly a violent one, in the community college he attended:

Pima Community College, in Tucson, issued a statement identifying Loughner as the suspect. It said he was a student from the summer of 2005 to fall of 2010, but he was suspended Sept. 29 for conduct violations. It said he agreed to withdrew from the college on Oct. 4.

The college said that from February to September of 2010, Loughner had five contacts with college police for disrupting classrooms and the library. It said he was prohibited from returning to the college.

A spokesman for the college said Loughner's videos troubled administrators and campus police, leading to his suspension. In one video, he "claims that the College is illegal according to the U.S. Constitution, and makes other claims," the college's statement said.

Loughner and his parents, Amy and Randy Loughner, met with administrators, who required him to be obtain a certification that "in the opinion of a mental health professional, his presence at the College does not present a danger to himself or others." . . .

Lynda Sorenson said she took a math class with Loughner last summer at Pima Community College's Northwest campus and told the Arizona Daily Star he was "obviously very disturbed."

"He disrupted class frequently with nonsensical outbursts," she said.

The community college alerted his parents that there was problem, something that they probably already knew. He apparently lived at home with them.

While he has in college, he was prosecuted for a minor drug related charge:

The Arizona Republic reported that the charge was for possession of drug paraphernalia. The charge was dismissed in 2008 by the city attorney after Loughner entered a pre-trial diversion program.

He left his high school after his junior year, despite not leaving the area, and around the time he started in at community college:

Tamara Crawley, director of the Marana Unified School District in Tucson, said Loughner attended Mountain View High School in Tucson for three years but withdrew after completing his junior year in 2006. . . . [A high school and college classmate] described him as having a lot of friends "until he got alcohol poisoning in '06" and dropped out of school.

He wrote odd and disburbing things on the Internet.

In November, less than two months after he was kicked out of college, Loughner had bought a Glock, purchased legally from a Sportsman's Warehouse in Tucson. Less than two months after that six people are dead and fourteen people are wounded, many of them seriously.

Spree Killings Are A Distinct Kind Of Crime

When one looks at the profile of people who commit these kinds of horrific one time explosions of violence, a good share share of them are people like Loughner. The warning signs in Loughner's case were similar to those involving Matthew J. Murray who went on a shooting spree in Arvada and Colorado Springs in 2007. They resemble those of Aaron Synder who tried to kill Governor Ritter in 2007. They have similarities to those shown by Seung-Hui Cho, who carried out the Virgina Tech massacre in 2007. They resemble Robert A. Hawkins who carried out the Westroads Mall shooting in 2007. They show resemblances to Eric Harris and Dylan Klebold who carried out the Columbine High School massacre in 1999.

These cases aren't that different from that of Malik Nidal Hasan, the Army medical officer who was responsible for the Fort Hood shooting in 2009, and Kyle Aaron Huff who carried out the Capitol Hill massacre in Seattle in 2006. They resemble Charles Joseph Whitman who in 1966 went on a shooting rampage at the University of Texas at Austin.

The Malaysians had a word for these kind of acts carried out by these kinds people long before we did that has entered the English language in the phase "running amok", although the force of the term has been diminished from overly casual use in English. The home made equivalent ideom, which has the Malayian meaning of "amok" is "going postal." The more clinical term used by the FBI for this kind of individual is "spree killer".

Spree killings aren't very common, but they do occur at a more or less steady pace all over the world and inevitably make headlines when they happen. The spree killers are almost always men. They almost always commit suicide, are killed by someone else in the course of their spree, or are caught and detained for life.

These men are very distinct psychologically from serial killers, from people who are part of criminal gangs or are "professional" criminals who kill in the course of their crimes, from paid hit men, from people who are normal when they aren't drunk or on drugs, and from people who carry out mass killings in connection with aggressive approaches to a position of authority like police, national guardsmen or soldiers.

While they often have grievances and concerns with a political slant and perhaps colored by the political and religious discussions of the day, and these men generally act alone or with a very small circle of troubled friends rather than as part of an organization, often have vague or irrational agendas. Generally, there is no "sane" person personally coaxing them to engage in violence.

Their crimes involve pre-meditation and planning, and the people who commit them are no doing so with any hope of bettering themselves. They expect to die or be incarcerated forever. These are acts more akin to suicide than to homicides carried out with a rational motive. They are terrorist suicide killings carried out by rebels without a cause that makes any sense. The lack of self-regard make them immune to the deterrence threat of punishment in the criminal justice system. Who cares about the death penalty when you expect that there is a good chance that you will die in the course of your crime anyway?

The Problem Of Definition

In an ideal world, we would have a well honed societal early warning system that would alert authorities to what family members, classmates, co-workers, school administators, bosses, and maybe even police already know, that a particular individual has a real problem and is at grave risk of causing massive harm to other despite having no strong history of violence causing injury, and would have a way of intervening to prevent this individual from causing harm to others.

American law permits involuntary mental health treatment and civil detention for someone who presents a danger to himself or others, aluded to by Pima College in the Loughner case, and we also have a civil restaining order system in place that receives quite heavy use in cases where the danger to others that is particularized to a small number of identifable others. Existing law, although ineffectively implemented, also prohibits those who have been involuntarily committed from buying guns, but bureaucratically, there is not good systemic integration of involuntary commitment records with instant background check systems, and substantively, this narrow definition of mental health problems is grossly underinclusive, particularly in an era in which over the last four decades or so, outpatient treatment of mental health issues have become the near universal approach to treating these issues with institutionalization limited to a very narrow subset of all people with serious mental health problems.

But, the existing system isn't very effective. It isn't clear who is responsible for intervening. It often isn't clear to those around the disturbed individual, especially in the case of an adult, who has the authority to intervene and what that authority entails. Most of all, it isn't clear when intervention is appropriate because often no one person has enough information to clearly establish a danger to others alone, even if many people have enough information to suspect it, and because the symptoms that establish that someone is a danger to others are not well defined.

This is particularly problematic in the American legal system, because our legal system and political culture is particularly suspicious of intrusions on autonomy and freedom for the greater good based on acts on might take, rather than acts one has taken.

On one hand, it is frequently obvious to those who interact with them that something is future spree killers are disturbed individuals. On the other hand, it is often not at all obvious where the line should be drawn. Perhaps one man in a thousand is as intuitively "off" as the people who end up committing spree killings, even though only a handful of spree killings take place in any given year in the entire United States, out of a population of tens of millions of men in the age range of people who commit these crimes.

Statistically, spree killings aren't a major cause of death. But, the immense psychological trauma they impose on the population makes them notable.

An ability to identify a group of fifty thousand people in the United States, from whom it is extremely likely that almost all of the several spree killings a year will be committed would be pretty impressive, compared in scale to the massive and not very effective probation and parole system we have in place. Since most spree killers obtain weapons legally, and many lack adequate mental health care, and a good share of no one who feels responsible for monitoring their well being.

If those individuals could be identified, disqualified from owning firearms via the database used to screen gun purchasers now, pro-actively offered and nudged into seeking mental health treatment, and subjected to light monitoring that would reveal major life changes or disruptions in mental health treatment and would be specifically designed to have a group of designated informants among school, work, family, treating medical professionals, and social contacts who would feel some slight obligation to alert a monitor if the person's situation seemed to be taking a turn for the worse, and that monitor had the authority and responsibility to intervene in those situations, a lot of these incidents could be prevented. The level of intervention required could be somewhat less intense than the kind of supervision that someone on probation or parole receives and still have a measurable effect. It might be that a large set of people so identified would have less intense supervision, simply being banned from purchasing firearms, offered free access to mental health treatment, and annually checking in close associates to let them know who to call if the circumstances changed or the situation appeared to escalate, while others who posed a higher risk would be monitored much more intensely. This would take a tiny share of the societal resources that we devote to the criminal justice system to implement, and it would also help to destigmatize mental illness and reduce the fear people have of the mentally ill who were not identified as high risk.

The payback of this kind of system would be considerably greater than simply reducing the incidence of spree killings for one out of a ten thousand supervised individuals. For every spree killer, there are no doubt tens or hundreds of people or more with a profile that puts them at high risk of becoming spree killers, who commit suicide, who would otherwise kill a particular loved one, who would neglect or abuse a child, who would lapse in taking psychiatric medicines and as a result see their careers and educational aspirations and personal relationships collapse, who would want mental health treatment if they knew it was available and could gain access to it, who cause serious damage to property, who kill someone's beloved pet, who injures others, who commits "suicide by cop," who ends up in prison, or who engages in reckless acts that endanger the public that are on the line between accidents and generalized malice.

Few people who fit a "spree killer" profile may actually commit a spree killing, but a very large share of people who fit that profile would benefit personally, and/or have people associated with them who would benefit, from intervention in their lives.

But, crafting an operational definition that is inclusive of almost all potential spree killers, while excluding people who are not at high risk for being either spree killers or otherwise being a danger to themselves or others, that can be vigorously applied without undue abuse and without unduly impairing the liberties of people who are merely "different" or have principled objections to the mainstream medical approach to treating mental health conditions is not an easy task.

Yet, this must be the kind of definition that becomes as distinct a part of popular culture as CPR instruction, "drop and roll" for people who are on fire, "direct pressure" as the cure all for bleeding, "don't drive drunk," "no means no" and other public health and safety messages, and to be effective, it has to win widespread societal acceptance from a significant share of people even in a lot of fairly anti-authoritarian subcultures. It needs to have the perceived authority of science behind it. It needs to be accepted as legitimate, if not by all people who fit this definition, at least, by a large share of all people who are friends and family and colleagues of people who fit this definition. The closest precedent would probably be the system that requires a large swath of people to report child abuse and neglect and provides a place for others to report it voluntarily.

Almost invariably, when serious consequences are attached to conduct or a condition that is described overinclusively, a large share of all people who suffer those consequences come under the overbroad part of that definition. For example, a surprisingly large share of first degree murder prosecutions involve women who kill their infants in the throes of childbirth or criminal accomplices who did not anticipate that a murder would be committed in the crime that they were involved in and had no personal participation in that murder. Similarly, a very large of racketeering cases involve relatively minor white collar crimes committed in an organized way, rather than anything closely resembling the kind of mafia activities that generated political support for RICO's tough sentences.

Slight overbroadness in defining a high risk category risks bringing far more people than necessary into the net, making the program much more expensive to manage, making the people who run the system less alert to the risk among those they are monitoring than they need to be, and making the intrusion into liberty interests involved much greater.

Another approach to deal with the limits of lay expertise in mental health diagnosis akin to the reasonable suspicion for a "Terry stop" v. probable cause for a "search or seizure" distinction in U.S. law under the 4th Amendment, would be to have a low threshold at which an individual could simply be compelled to receive a mental health evaluation and diagnosis, while limiting anything else to individuals who were diagnosed in a voluntary or involuntary mental health evaluation as suffering from a particular set of symptoms, or were found by some sort of public body (perhaps a tribunal or public office) to have that set of symptoms based on information received in cases where diagnosis is unavailable. Mental health evaluations might also be made a standard part of every criminal case more serious than a traffic stop, even if it is resolved with a diversion program or deferred prosecution.

A two tiered approach might also make members of the public less wary of intervening, as insisting that someone seek professional advice is less weighty making a complaint about someone that would lead directly to significant personal consequences for the person about whom authorities were alerted.

Including a voluntary diagnosis would disturb a bedrock foundation of confidentiality in the mental health care system, but the justification that privacy is necessary to cause people to seek help might be less compelling in a context where the government had the legal authority to compel someone to seek mental health evaluation and diagnosis on the basis of a reasonable suspicion (or probable cause to believe) merely that the individual was clinically mentally ill and could benefit from treatment. And, the individual alerting the system to the need might simply be told as feedback that "an inquiry was conducted based upon the information provided and that it was resolved in accordance with the law" rather than provided with detailed information on how it was handled. In all likelihood, in many cases, alerts would come for individuals who had already been evaluated and diagnosed and were in the system, and would simply lead to a brief memo to a designated mental health care provider.

I don't have great faith that psychiatrists can generally determine with much accuracy at all using existing methods whether or not someone poses a risk of future dangerousness. But, I do have greater comfort that psychiatrists can be reasonably accurate in diagnosing mental health conditions, and that it is possible to distinguish mental health conditions in which there is an elevated risk of someone fitting a "spree killer" profile from those where there is no elevated risk of that kind of activity, and the set of diagnoses where there is an elevated risk is, I suspect, a rather modest subset of all mental health conditions, and this designation is one case where a blanket gender distinction probably makes sense given the gross disproportion of men to women who commit these incidents. (The only American woman who might even remotely qualify is Caril Ann Fugate who claimed innocence but was convincted in a crime that her boyfriend admittedly was involved in committing in 1958 in Nebraska in a episode that is in any case a poor fit to the mental health driven spree killing model described above.)

In an ideal world, an in depth mental health inquiry and background check might be linked to eligibility to purchase guns, since spree killings are almost exclusively committed by people who have purchased firearms, allowing people who choose not to purchase guns and as a result pose far less of a threat to the public to escape supervision in most cases, and casting the mental health inquiry as rationally related and narrowly tailored to a right to do something in particular that poses an elevated risk, a bit like a driver's license, rather than as a punishment. After this inquiry was completed, it would be revocable if new information came to light, but might not have to be re-examined for each new purchase. This kind of inquiry also would have prevented at least some of the small number of shooting range shootings that take place, such as the attempted suicide pact of twins at the Family Shooting Center in Colorado in 2010, where at least one of the suicidal twins had a history of despondancy.

In the current political climate, that is probably not a possibility in the short run, given the strong association of the ascendant Tea Party faction of the Republican party with the Second Amendment and weak gun control laws. Although, even the NRA has supported improved record keeping to prevent those who have been civilly committed from being able to lawfully purchase guns, and many gun owners recognize that a large share of gun control efforts are driven by events like spree killings, and that gun control efforts might be far less intense if there were reasonable measures in place to reduce their incidence, even though spree killings a tiny share of all gun murders. The Heller ruling of the U.S. Supreme Court in 2008 that declared the right to bear arms for self-defense to be a constitutional right made clear in dicta that prohibitions under current laws on gun purchases by the mentally ill were permitted under the Second Amendment.

While the short run political climate may make this approach untenable, I think that one long run, bipartisan secular change in policy attitudes over the rest of my lifetime is going to be increasing intolerance of predictable and preventable tragedies. The more clear it becomes that there is a way to prevent tragedies, the more pressure there will be to take strong measures to prevent them.

Notably, along these lines, in Britain, Doctors agreed this summer to breach medical confidentiality if patients who own guns become seriously mentally ill.

READ MORE - Do We Need A Better Early Warning System?

So Much For A Less Violent American Politics?

I recently made a couple of posts on the relative non-violence of American politics and labor relations compared to the European (and to some extent world) alternative.

Then, there was the attempted assassination of a Democratic Congresswoman in Arizona this weekend that resulted in the death of the chief judge of Arizona's federal trial court and five others, in addition to a dozen plus other gunshot wounds. The event was cited by many as a symptom of the violent political rhetoric by the Tea Party movement (including Sarah Palin, in particular) in the 2010 election. We a little of that climate in Colorado, but it was probably more intense in Arizona. The Congresswoman who was shot suffered a bullet shot through the brain and miraculously lives at the moment, but there is no telling if she will be able to continue to carry out the duties of her office, and certainly, her life will never be the same again.

I wasn't specifically contradicted by this event; I've never argued that there is never political violence in the United States, just that it is comparatively rare. But, was I fundamentally wrong? Is this a case of American politics turning a corner in the wrong direction after a low point that my post captured? Or, is this simply one more mass murder by a mentally ill person whose political character is really no more relevant than any other of these periodic mass murder outbursts?

We really won't know until time tells us if this was a freak event or the start of a trend. The arrest of a man for threatening U.S. Senator Michael Bennet isn't encouraging, of course, and this incident does remind us the outgoing Governor Ritter survived an assassination attempt by a mentally ill young man during his four year term of office. It also casts a different light on the act of animal rights terrorism involved in the burning down of the Sheepskin factory in Glendale, Colorado, a stone's throw from my office.

The fact that the killer was off his rocker (although quite possibly still legally culpable for his crime) doesn't necessarily mean that the political climate wasn't a factor. Extreme acts are committed by extreme people. Even in street gangs, the people who actually kill other people in gang crimes are not typical of the average street gang member from a mental health perspective. But, the fact that this most recent shooting does not appear to have involved an organized conspiracy, at least, is encouraging. Others may not have been attuned enough to the risk to take some sort of action before he struck, but they might be now and certainly the people who might have had a clue that the killer was dangerous but failed to stop him, had no desire to further his murderous plans.

(As an aside, while there is little doubt that the attempted murder of a Congresswoman took place here, the federal death penalty for murder of a federal official required an actual death, and it isn't clear whether or not one can be guilty of that crime if one did not know that one of the bystanders killed was a federal judge, or if the doctrine of transferred intent (i.e. that an intent to kill one federal official suffices to show intent even if a different federal official ends up being the one who dies) applies to that offense. Arizona's death penalty surely applies to this case at any rate.)

The man who committed the crime was caught and he will probably never be in a position to threaten anyone else ever again. The politicians and spinmeisters have been chastened, for a little while at least, about the perils of engaging in violent rhetoric, politically even if there is no causal link to this event. There is little one can do to prevent a single deranged individual from sometime, somewhere doing something horrible. But, if the causes are larger, there is something that can be done.

Gun control will be debated, and it just might just happen that some tangentially related legislation to limit the access of mentally ill people with criminal records (as the perpetrator apparently had) might advance just a little, or it might not. The bill most on point will probably be rechristened with the name of Gabrielle Giffords, who was the target of the attack (a la the Brady Bill).

In isolation, events like these are tragedies, but don't change the larger course of our lives. But, when they impact the rarified world of our modest community of high elected officials and judges, the potential for an event like this to change who choses to participate in politics and how they choose to do so is real. The fear that a comment will draw a violent attack from a crazy person can change how politicians act, mostly for the worse. This is particularly true when the deadly violent crazies who are our domestic terrorists seem to have a conservative partisan bias.

READ MORE - So Much For A Less Violent American Politics?

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