29 July 2009

Governor's Office Makes Clemency Case To WPP

Trey Rogers from Governor Bill Ritter's office gave me a call today. We talked for half an hour about this post about a Colorado Public Radio spot on the progress being made by the Colorado Juvenile Clemency Board, which I understand from Mr. Rogers has been widely circulated by Mary Ellen Johnston, the advocate for juveniles in the spot. Who knew? Most of my posts receive less attention.

It appears that the Governor's office is paying rather close attention to the issue, at any rate, presumably under the belief that this has political importance. Suffice it to say that I've never received such a lengthy, personal and vehement defense of a Governor (or any other official's) position on anything, either as a genuine paid journalist, for Colorado Confidential, or here. Whatever actions the Governor takes in these cases will not be political accidents or missteps. They will be deliberate.

I confirmed that he was on the record, so I first offer some factual points he made to me on that call, some of which were not previously reported upon in the press.

A Clarification

The Colorado abolition of LWOP bill was passed in 2006 legislative session, when Bill Ritter were merely the leading Democratic Party candidate for Governor. We have a Republican Governor, Bill Owens, then. Bill Ritter did not take a public position during the campaign on that issue. This said, he silence was not meaningless.

This debate came up as a hot issue while he was running and it is the prerogative of a candidate for Governor to take a position on issues like this one. Further, as District Attorney, he was an active supporter of the position of the District Attorney's Association at the Capitol that the legislature should never retroactively reduce a criminal sentence, essentially on the grounds that this is a Governor's privilege. If he had taken a position in support of retroactive repeal of LWOP he could have done so. If he had wanted to use his pardon power to do that across the board once elected, he could have done so.

There is no legal requirement that he make a record on a parole matter showing everything considered in his decision. There is no legal requirement that a request for clemency be received at all. There are precedents for unsolicited grants of clemency by both Governors and Presidents. Clemency is not an adversarial process. He can write it on a napkin if he wants, so long as he sends a brief follow up letter to the appropriate official in the Colorado General Assembly explaining his action to meet the minimal notice requirements of the state constitution.

Trey Rogers asserts that Governor Ritter was simply not a part of the LWOP debate. I'm not convinced that this was true in terms of messaging and behind the scenes influence. A candidate for Governor is always part of any high profile debate, even if that role is silence. But, to the extent that I implied that he was Governor when the bill abolishing LWOP was passed, I was wrong.

Also, when the Board was established in August 2007, it was spun as a way to address the issue of Juvenile LWOP sentences in the state that were not retroactively repealed. If he was not in the debate at that point, he inserted himself into the debate at that point, marking territory on the issue to discourage the legislature from passing a retroactive juvenile LWOP themselves.

The Colorado Juvenile Clemency Board Progress Report

My understanding form Trey Rogers is that the recommendations of the Colorado Juvenile Clemency Board are generally for the Governor's eyes, and the Governor's eyes only. He may take or leave their recommendations, and he will take responsibility for them. He said that there was no way anyone could know if the Board had recommend clemency or not in any cases, and that Jeanne Smith didn't say that the Board hadn't (her language, and his suggested that it had not, but wasn't absolutely definitive).

He specific said that he wouldn't say if they had made recommendations or not (with the exception I will note below). I understood that they would not be made public prior to a decision by the Governor on these cases.

His initial summary of the status of the applications was that there were "a handful of denials, low single digits, or recommendations that the Governor grants some clemency." More detailed numbers followed, and I'm not entirely clear if this initial estimate was clarified by, or was in addition to the further detail I repeat below.

He notes that the Board was created from scratch in August 2007, a little less than two years ago, and that it took the Board time to develop threshold criteria, board rules, create a draft application and accept applications. He also stated that applications typically require staff to gather non-public, not easy to get information like comments from the victim's family, the prosecutor and judge that are not public, that applications are typically not complete. These lengthy submissions, as supplemented by staff must then be considered by the Board.

I was told that 20 applications have been submitted. The first application was completed in June 2008. Four of the 20 applications were either incomplete or didn't meet the basic criteria established by the Board that an inmate has served a third of a sentence or ten years in prison before an application will be considered. At this time, the Board has considered 11 of the remaining 16 applications and has 5 applications that will be considered in due course, for example waiting for a future meeting.

There were 3 applications of the 11 applications considered were of individuals were have parole eligibility within the next 3 years. I was told that the Board was "not going to look seriously at those." This leaves 8 applications, of which 4 involved Life Without Parole (LWOP) and the other 4 were very long sentences. The LWOP sentences and very long sentences were the ones that the Board undertook to consider.

One of the four LWOP was rejected by the Board. This was the case described as a "hit and run" by Mary Ellen Johnston on the Colorado Public Radio spot. Trey Rogers disagreed. He asserted that the jury found that the killing was a premeditated and intentional gang initiation killing that used a motor vehicle as a weapon.

The overall point that Trey Rogers was making in bringing up these details was the delay was not unreasonable, a point that has some merit, and will discuss in a bit.

Discussion Of The Merits

Trey Rogers acknowledged that Jeanne Smith, who was interview by Colorado Public Radio, was not just a random board member. She is the chair of the Board, and was intentionally selected as the Board's spokesperson to provide to Colorado Public Radio. Trey Rogers said that she was "speaking for the Board," although in context, he meant that she was a board member who was authorized to speak when she spoke about what the Board had decided, but that she was also one member of a Board that was not unanimous on these issues (nor is Governor Ritter's staff) and when she did not speak on behalf of the Board itself by her words that her statements reflect her view of the matter.

Neither he, nor I suggested that point, because it was understood. But, certainly to the extent that she was speaking for this advisory board, she was not speaking for the Governor himself, although she was hand picked by him to lead this Board and one assumes that he was familiar with her positions on these issues when she was appointed, and that he has accurately conveyed publicly or privately to her some of his feelings about what he wants from this Board which exists solely to provide him with non-binding advice.

Trey Rogers also indicates that his comments and other information provided by the Governor and the Board to Colorado Public Radio was left on the cutting room floor or not included in the story, because that was not the way that CPR wanted to tell the story. He raised his version of the "hit and run" case that was denied.

He also mentioned his statement to CPR, coming out of the Governor's office, that it would be legitimate for the Board to reduce sentences to parole after 40 years (which is what it would have been if the legislature had made its Juvenile LWOP decision retroactive), a position seemingly at odds with the position taken by Jeanne Smith in the interview. He did not suggest, however, that the Governor actually intended to take that position.

He raised the possibility that a reduction of a sentence to possibility of parole after 40 years could put a person who turned out to be a dangerous violent offender back on the streets. I asked why the parole board couldn't consider those issues in after the person who had been convicted of the crime committed as a juvenile after 40 years and deny parole if the inmate had shown himself to be dangerous in that time period. He didn't have an answer to that question.

To suggest that a parole board in 40 years with better information couldn't be trusted would require the Governor to agree with an exceedingly distrustful, conspiracy theory view of how parole boards work, of course, which isn't what one would expect from a politically moderate sitting Governor. Common sense makes clear that parole boards don't put people convicted of first degree murder back on the streets after a history of bad behavior in prison for forty years.

The simple fact is that the real risk to the public involved in not commuting juvenile LWOP sentences to the retroactive consideration of parole after 40 years determination in any of these cases is essentially zero. And, for crimes committed by juveniles it is simply impossible to know with certainty now that the inmate will be a threat to the public in 40 years -- none of them have the track record of misconduct at this point in time to justify such certainty.

With regard to the suggestion that the media had spun the story in the wrong way, misinterpreted Jeanne Smith, incorrectly described the one case that the Board had rejected, or misconstrued the Governor's position, I stated that the media would pick up any press release that the Governor made on the issue. He didn't disagree with this assertion and didn't offer any firm statements about why the Governor hadn't done so. I guess that I'm the press release. I'm doing my best to accurately reflect the discussion, but I'm human and as a lawyer in compliance with ethical rules in Colorado, I don't tape telephone calls without the consent of everyone on the call and didn't this time. I'm human and I could convey wording that a press release wouldn't convey.

On the timing issue, I raised the upcoming 2010 election. I noted that the Governor is goinig to be under intense political pressure when he is lagging in the polls and running as a moderate to refrain from issuing pardons or clemency in 2010. Also, the traditional time to grant pardons and clemency requests, although not the exclusive one, is from Thanksgiving to Christmas, in the holiday season, give or take a few days. (In hindsight, I didn't discuss this, the second anniverary of the commission would also be a sensible time to announce a decision.) So, there is basically one narrow politically sensible window for the Governor to act, and it is coming up very soon.

Trey Rogers suggested that at this point in our discussion that I was just predicting the future. I directed him to the name of the blog.

He, of course, took umbrage at my description of the action to date as a broken promise in my original post, before there was much real information in the hopper. I noted that the CPR piece confirmed the prior supposition made in the Denver Post by Susan Greene (he claims without interviewing anyone in the administration about the facts), that the Board was just a smokescreen. But, for all the discussion of the timing, the real discussion was about the merits of Jeanne Smith's statement about how the Colorado Juvenile Clemency Board was interpreting its mandate.

This interpretation was undoubtedly more crabbed that the way that the Board was spun when it was created, which was as a way to make middle ground between a retroactive legislative amnesty to current Juvenile LWOP inmates and no relief at all for Juvenile LWOP inmates.

A special Juvenile Clemency Board wasn't created simply to consider compassionate release or extraordinary good behavior while incarcerated. It was created to provide some sort of relief from juvenile sentences that the legislature has since disavowed (in a very modest way -- 40 years is still an extremely long time for a juvenile offender when the average adult sentence for murder in Colorado just a few decades ago was under ten years), and which are substantively unjust given the facts of the underlying cases even though they were legal at the time. By disavowing this part of the Board's mandate, it has broken the implied promise to consider this issue that the Governor made when he created it.

Her statement isn't binding precedent. The Board could vote her down in another case they find more suitable. The Governor could disagree with the Board's recommendation. It is simply a relevant precedent, and the precedent is not just in the actual determination made on the facts, but in the reasoning used to justify that decision.

The real meat of the discussion, of course, was not delay. It was whether the Governor intended the Board to see reconsideration of legislative decisions that it has since changed in old cases to be beyond its mandate, and if not, why he hasn't clarified that point or revised his executive order. If the Governor really agrees with the policy stated by Jeanne Smith on Colorado Public Radio, he has broken an implied promise. If the Governor didn't intend that, then why wait for a flawed recommendation.

The even deeper subtext is whether the Governor is expanding the scope of issues upon which he is breaking with his political base in the Democratic Party. The bridges have been burnt with labor already, and no olive branches have been offered to mend them (apologies for the mixed metaphor). But, it still isn't definitely established that the Governor will break with his political base on this criminal justice issue by refusing to make even a token effort to say that inmates imprisoned for crimes committed by juveniles should have at least some chance, long in the future, to tell a parole board that they are redeemed enough to be released.

Background: the Colorado Situation

It certainly looks like he has broken the implied promise he made when he created the Board by staking it with people who have a crabbed view of justice. But, Governor Ritter can change his mind and make peace with his fellow party members by showing just a little mercy to some of the 46 juveniles serving LWOP and more juveniles serving very long sentences in Colorado.

Who are those juveniles in prison for life without possibility of parole?

• 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.

Clemency has been rejected in one of the two-thirds of the cases where the convictions were for murder. Three more Juvenile LWOP cases are being, or are just about to be considered by the Juvenile Parole Board.

The other 43 inmates appear to be hanging back, waiting to see how cases are handled by the Board before they try to make their cases, and the Governor looks likely to refrain from granting clemency to any of them at this point, simply because they have not asked him for clemency at this point.

The felony murder cases, and the cases involving the 14 and 15 year old offenders, in particular, cry out for relief more generous than the possibility of parole after 40 years dispensation that was granted by the legislature. These are cases where the prosecutors clearly abused their discretion in bringing this cases as first degree murder cases in adult court at all. But, given the statements and lack of statements that we have seen to date, I am not optimistic at all that this kind of clemency will be forthcoming, even though that is what is just.

Pending SCOTUS Litigation -- the Merits

In 2002, the U.S. Supreme Court prohibited the execution of retarded defendants, reversing its 1989 decision to the contrary. The opinion reaffirmed prior holdings that:

[W]e have held that death is an impermissibly excessive punishment for the rape of an adult woman, Coker v. Georgia, 433 U. S. 584, 593-596 (1977), or for a defendant who neither took life, attempted to take life, nor intended to take life, Enmund v. Florida, 458 U. S. 782, 789-793 (1982).

The Colorado felony murder statute could, in theory, include offenses both within and beyond the scope of Enmund as restated in the 2002 opinion.

In 2005, the U.S. Supreme Court held that the constitution prohibited executions for against persons committed by juveniles, no matter how heinous. In 2008, the U.S. Supreme Court has also recent held that an adult may not be executed for raping a child, if no one is killed, in a broad ruling that included statute that required even more aggravated non-murder convictions.

The political balance of the U.S. Supreme Court is largely unchanged since these cases were decided, despite some changes in personnel, and the pending confirmation of Justice Sonia Sotomayor who was nominated by President Obama.

The U.S. Supreme Court is currently receiving merits briefs in two cases involving life without parole sentences imposed for non-triggerman murder offenses committed by juveniles under the 8th Amendment's prohibition on cruel and unusual punishment, "one involving a 13-year-old sex offender [he has now served 20 years in prison], the other a 17-year-old probation violator present when a felony murder occurred." The first is Sullivan v. Florida, the second is Graham v. Florida.

The questions upon which the U.S. Supreme Court granted cert. are as follows. I suspect that the phrase "freakishly rare" has never before appeared in a U.S. Supreme Court certiorari grant. The Court also didn't have to grant certiorari using the wording "non-homicide" in the Graham case if it hadn't wanted to do so. This has to be good news for the larger class of inmates impacted by these cases.

Graham v. Florida, 08-7412 (cert. granted 05/04/09)
(case below: 982 So.2d 43)

Questions presented:

Whether the Eighth Amendment's ban on cruel and unusual punishment prohibits the imprisonment of a juvenile for life without the possibility of parole as punishment for the juvenile's commission of a non-homicide?

Sullivan v. Florida, 08-7621 (cert. granted 05/04/09)
(case below: 1D07-6433)

Questions presented:

(1) Does imposition of a life-without parole sentence on a thirteen-year-old for a non-homicide violate the prohibition on cruel and unusual punishments under the Eighth and Fourteenth Amendments, where the freakishly rare imposition of such a sentence reflects a national consensus on the reduced criminal culpability of children?

(2) Given the extreme rarity of a life imprisonment without parole sentence imposed on a 13-year-old child for a non-homicide and the unavailability of substantive review in any other federal court, should this Court grant review of a recently evolved Eighth Amendment claim where the state court has refused to do so?

The Sullivan case, which is the case in which the U.S. Supreme Court is more likely to grant relief, would not necessarily impact any juvenile incarcerated in Florida. Colorado does not call for a life without possibility of parole sentence in cases other than first degree murder and first degree kidnapping (where the death of the victim could be only possible, rather than proven beyond a reasonable doubt), and has only murder and felony murder juvenile LWOP inmates right now. Colorado also has no cases where the crime was committed by an offender as young as thirteen years old.

The scope of the ruling in Sullivan could, however, to the extent that it talked about whether a very young offender can ever be culpable enough to qualify for a life without parole case without regard to the nature of the offense, impact some of the younger offenders (those who committed offenses at ages 14 and 15 who weren't eligible for the death penalty even prior to the U.S. Supreme Court's 2005 ruling).

The Graham, in contrast, could be resolved in multiple ways. If the State of Florida wins the case, it would ratify the constitutionality of juvenile life without parole sentences in felony murder cases involving bystander juveniles who are close in age to eighteen years old. It could also be used to more broadly affirm Florida law and allow life without parole sentences for any juvenile convicted of first degree murder.

On the other hand, Graham could be used to invalidate life without parole sentences for all juveniles, or for all juveniles who did not personally commit, attempt to commit or intend to commit a murder, deferring age issues to another day.

The Graham case could even be used to overrule its past precedents and hold that scuh felony murder cases do not necessary constitute homicides within the meaning of the Court's 1982 Enmund decision and are hence not eligible for either juvenile life without parole or the adult death penalty. This would require reconsideration of each of the felony murder juvenile LWOP cases in Colorado, about a third of the total and the least culpable of the cases (and hence most plausible cases in which to grant clemency).

Of course, any defendant favorable ruling in Sullivan or Graham will require the U.S. Supreme Court to consider how to determine what does constitute a constitutional sentence in such cases. Two ways that this could be done would be either by fiat (perhaps following Colorado's miserly example of parole consideration after 40 years), or with reference to the next most serious offense for which the juvenile could have been convicted in Florida.

The issue will be on center stage in the U.S. Supreme Court right around that holiday season this year and into the start off the Governor's 2010 re-election campaign.

Pending SCOTUS Litigation - the Politics in Colorado

Looming over the decision of the Governor and the Board is pending U.S. Supreme Court litigation regarding juvenile life without parole.

If the Governor grants pardons, this adds more fuel to the criminal defendants' cases in the U.S. Supreme Court that these sentences are unjust (the Colorado legislature will probably not have time to act further on the matter before these cases are decided). But, granting pardons also makes the Governor look foresightful and merciful if the U.S. Supreme Court agrees that the sentences would have been unconstitutional, but for his act of clemency. And, if he says no to anyone who applied for clemency, when the U.S. Supreme Court finds the sentence to be unconstitutional, he looks like his own judgment is "cruel and unusual" as officially determined by the U.S. Supreme Court.

But, if the U.S. Supreme Court rules in a way that would have upheld the constitutionality of the Colorado sentences, but the Governor pardoned defendants anyway, he will give his Republican opponents a fig leaf to argue that he is more lenient that the U.S. Constitution requires him to be. This will be a fairly weak argument, however, so long as there is a life with possibility of parole sentence with eligibility after any term of years, because a parole board must first approve the release based upon the inmate's post-conviction conduct in prison.

We'll see what happens next.

No comments: