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

Crisanta Duran Disappoints

A gutless, self-defeating and bitterly disappointing vote by Democratic State Representative Crisanta Duran, in the proud tradition of Colorado Governor Ritter's most self-defeating moments, permitted the weak legal arguments of Colorado's Republican Attorney General Suthers, that she as a lawyer should have known better than to take seriously, to derail justice for 48 juveniles serving life without possibility of parole sentences in Colorado (authorized by statute only from 1991 to 2006), once again. 

Duran's unwillingness to take responsibility for the consequences of her own actions and to claim that she "hasn't given up on" them is particularly disgusting.

Under HB1287, the juveniles convicted during that time would be eligible for parole after serving 40 calendar years.

The judiciary committee killed HB1287 on a 6-5 vote, despite its bipartisan sponsorship by two members of the committee, Reps. Claire Levy, D-Boulder, and B.J. Nikkel, R-Loveland.

The bill’s sponsorship all but guaranteed its passage out of the committee if the vote had broken down along party lines. But Rep. Crisanta Duran, D-Denver, voted with Republicans to spike it.

She cited questions about its constitutionality raised by the attorney general’s office.

“I’m not going to give up on those 48 offenders,” said Duran, a lawyer. “The reason why I voted against the bill is because I think there needs to be work done to reach out to all of the stakeholders and have a less divisive process.”

She also would like to see a ruling from the Supreme Court on whether the Legislature has the authority to change sentences retroactively, or whether that would represent overstepping the General Assembly’s authority and encroaching on the governor’s right to commute sentences.

From the Pueblo Chieftan, via Thinking Outside the Cage.

Updated on 4-6-2011 to correct the spelling of Duran's first name.

READ MORE - Crisanta Duran Disappoints

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

Ritter Pardons More and Commutes Many Sentences

Governor Ritter took a measured stance in a second set of late in his term pardons and commutations last week, commuting the sentences of four people who were juveniles when their crimes were committed, two of whom had been serving life without possibility of parole sentences, a number of adults, and one retarded man, Joe Arridy, who was convicted of a murder committed in 1937 and was executed in Colorado decades ago, despite the fact that he was almost certainly innocent and another man was later convicted and executed for the same crime.

None of the clemency petitions granted the people serving sentences immediate release and many receiving clemency will still remain incarcerated for years to come.

Very different reasons seemed to be implicit in the different decisions. In one case, a juvenile clemency decision seemed to be based upon doubts about the culpability of the juvenile for the crime of conviction that he had argued was a mere accident rather than an intentional killing. In another case a co-defendant in a murder case had her sentence reduced to approximately the same length of the individual who had asked her to carry out the murder.

[The full story wasn't easy to find at the Denver Post website, so I hope to expand this with details from source documents later.]

READ MORE - Ritter Pardons More and Commutes Many Sentences

Highlights From An Interview Of Governor Ritter

DavidThi808 interviewed Colorado's outgoing Democratic Governor, Bill Ritter, for Colorado Pols and got some interesting tidbits. Here are some highlights.

[Remember Me For Improving Education, Expanding Access To Healthcare, Funding Transportation and the New Energy Economy]

[I] asked him what is his proudest accomplishment. He started off saying that they made the quality of life better under very difficult circumstances. . . . He talked about the package of education policy bills that have been passed and how that is of dramatic importance for the future of our state, especially to address the drop-out rate and achievement gap. He next discussed healthcare policy, calling out in particular the healthcare availability act. He completed his list with sustainable transportation funding (FASTER). He then switched gears and discussed what he thinks the history books will say. He thinks history will remember his administration for changing the energy culture in this state. . . .

[He Needed To Be More Aware Of Union-Mgt Issues And Promise Less]

Next I told Governor Ritter he gets a time machine, but gets to go back 4 years for 10 seconds to tell Governor-elect Ritter one thing. What would it be. He immediately answered that he would tell himself to pay more attention to the relationship between labor and the business community. He then said he would go back 5 years before the campaign started and stop himself from over-promising where was then not able to deliver. He later said that this was his biggest regret.

[The Republicans Put Politics Ahead Of The Public Good]

I then asked the Governor what was the biggest surprise over the last 4 years. He said it was how difficult it was to reach across the aisle to find common ground. He thinks a large part of that was a giant shock to the Republican party to lose so much ground since 2004 that they decided to focus on harming him politically as much as they code for electoral advantage rather than focusing on what is best for the state. . . .

[We Need To Invest In Higher Ed]

I asked what is the big issue Colorado will face in 20 years (assuming we are a green energy center and education is better). Governor Ritter replied "that we can get more for less money" (he's right - people who say that are lying!). That we can get more services, more jobs, and at the same time we can shrink government. He said that yes we need to always be fiscally prudent, but there are a number of things that would be better for the state that would cost money.

He went on to say that higher education is a good place to start. We are underfunding higher education and we cannot continue to underfund it without losing an edge. We're 5th in the country for jobs that require a college degree. Yet our most rapidly growing segment of the population is Latino/Latina and we're doing a lousy job providing them education. That we need to fund the programs that get people through K-12 ready for college, get them in to college, and get them to successfully graduate from college.

He went on to say "if we haven't figured this out 20 years from now, we'll be in real trouble." He says the people of this state have to figure out what they really want going forward. And they have to understand the impact higher ed has on the quality of life, economic development, etc.

I asked if the root problem is that a significant chunk of the populace doesn't care about the benefits higher ed brings, or if it's that people think they can keep taxes low and should be able to get the services they want. He replied both. First that people don't know, or that they haven't made the case to the people, about how key higher ed is to the future of this state.

Governor Ritter then said that an equal problem is the cynicism people have for the government. They look at the federal government with the deficit spending and the debt to GDP ratio is worrisome. And that reflects on to the state government. And with that comes people's lack of trust in the government to do these things, and do them well. . . .

[Don't Legalize Drugs]

I asked him about the money we spend on prisons and should we treat drugs as a mental health issue instead of a criminal issue. Governor Ritter first talked about how he started the state's first drug court. But he then said we cannot legalize drugs. He then went on to say that 75% of violent crimes are committed because people are intoxicated. He then continued saying we have to continue to educate kids about the problems that come with drugs, we have to spend money on treatment, and you have to address those people who won't obey the law. But you cannot legalize it because if you do then drug use will become normative.

Governor Ritter's official reason for not running again is the need to balance work and family, which is the default reason that every politician and political appointee gives for a decision to bow out of politics.

But, I think that I am hardly in the minority in seeing his frayed relationship with unions who are a key constituency of the Democratic party as his key political reason for not running again. And, the truth of the matter is that he could have delivered more to unions, simply by refraining from vetoing pro-union legislation that was passed on his watch. With Democrats in control of the General Assembly, he didn't veto many pieces of legislation, and the most controversial ones were pro-union measures, at least one of which he promised union supporters on the campaign trail that he would support, accompanied by unconvincing veto messages about the political process. But for those vetoes, it is my opinion that he would have been running for re-election in 2010 with broad based support from the Democratic party.

The interview didn't discuss juvenile justice or pardons, so we have no more insight on how Governor Ritter will address those issues in his final days in office.

READ MORE - Highlights From An Interview Of Governor Ritter

Ritter Pardons Twenty Adults; No Commutations

On Wednesday, Governor Ritter has pardoned twenty adults who were convicted of misdemeanors or felonies, served their sentence and would like to be free of the collateral consequences of their criminal convictions. Most notable was the Reverend Leon Kelly, who was convicted of armed robbery in 1979, but became an ardent anti-gang activist after his release.

None of the pardons applied to people currently serving sentences, which are called commutations when the sentence is reduced, but the conviction is not wiped from someone's record. Other than Kelly, all of the offenses were either misdemeanors or non-violent offenses.

This is not the first time that Governor Ritter has granted pardon petitions during his four year tenure, but it is the only set of pardons announced by press release from his office in the period from 2007 (when he took office) to the present. He issued one pardon as an executive order without issuing an accompanying press release on September 17, 2008 for a nineteen year old attempted sale of narcotics conviction. But, I have not located any other cases in which Governor Ritter has used his pardon power while in office.

Most notably, Governor Ritter has not yet taken any action on any juvenile requests for clemency, despite having taken the high profile step of convening a Juvenile Clemency Board to advise him on the matter on August 29, 2007.

The Juvenile Clemency Board meets in secret and is reputed to have turned down at least eighteen applications so far.

Governor Ritter still could act, of course, any time before his term of office ends on January 11, 2011. The Christmas and New Year's season, particularly at the end of a term of office, is a customary time for a Governor to grant pardons and clemency petitions. Governor Ritter told a Fox News reporter early this month that he was reviewing a large stack of clemency petitions and that a handful of pardons had been granted earlier in his term (although I have found only one such example).

Governor Owens, Ritter's Republican predeccessor, granted just thirteen pardon requests in eight years in office, and so far as i know, none involved individuals who were currently incarcerated.

READ MORE - Ritter Pardons Twenty Adults; No Commutations

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